Did the Minister take into account an irrelevant consideration? Was the decision vitiated by jurisdictional error?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (14 June 2023)

Intro:-

The Full Court of the Federal Court of Australia concluded that the appellant's decision under s 501CA(4) of the Migration Act 1958 (Cth) refusing to revoke a decision to cancel the respondent's visa gave rise to jurisdictional error because the appellant took into account a consideration made irrelevant by s 85ZR(2) of the Crimes Act 1914 (Cth) – namely the respondent's offending as a child for which no conviction was recorded – when, under s 184(2) of the Youth Justice Act 1992 (Qld), the respondent was taken never to have been convicted of any of those offences committed as a child.

Facts:-

The respondent, Mr Thornton, is a citizen of the United Kingdom who arrived in Australia with his family in 1999 on an Australian parent visa when he was three years old. He has lived in Australia since that time on a succession of temporary visas, the last of which was a Class BB Subclass 155 Five Year Resident Return visa, granted in 2011.

At the age of 16, Mr Thornton appeared three times in the Queensland Childrens Court and was found guilty of five offences: "failure to appear in accordance with undertaking", for which he was reprimanded; three offences – "going armed so as to cause fear", "serious assault police biting/spitting/applied bodily fluid/faeces", and "assault or obstruct police officer" – for which he was placed on a probation period of six months; and "assault or obstruct police officer", for which he was placed on a good behaviour bond for a period of six months. When he was 17, Mr Thornton appeared in a Queensland Magistrates Court and was found guilty of an offence of "commit public nuisance", for which he was ordered to pay a fine.

No conviction was recorded for any of those offences.

From when Mr Thornton turned 18 in September 2014 up until February 2018, at the age of 21, he was found guilty of a range of offences, including possessing dangerous drugs and property suspected of being connected with drugs offences, public nuisance, assaulting or obstructing police officers, failure to appear, drunk and disorderly behaviour, domestic violence offences, and several contraventions of domestic violence orders. He received various sentences for those offences, ranging from fines with community service or good behaviour periods without any conviction being recorded, to periods of imprisonment ranging from two to 18 months.

On 21 February 2018, Mr Thornton's visa was cancelled under s 501(3A) of the Migration Act as a delegate of the Minister was satisfied that he did not pass the character test because he had a substantial criminal record, and he was serving a sentence of imprisonment on a full-time basis ("the cancellation decision"). In the Minister's notice of visa cancellation, Mr Thornton was invited to make representations about revocation of the cancellation decision under s 501CA(4) of the Migration Act.

Minister's decision

Before stating that conclusion, the Minister made several observations concerning Mr Thornton's offending, including his childhood offending. The Minister first noted that he had assessed all of the information in the attachments to his reasons, which included Mr Thornton's juvenile criminal history, and in particular Mr Thornton's representations, which included acknowledgment of his childhood offending. The Minister noted that although he held the view that the Australian community might afford a higher tolerance of Mr Thornton's criminal conduct given that he had lived in Australia most of his life since he was three years old, he thought that "would be offset to at least some degree by the fact that he began offending as a minor and had a number of offences recorded before reaching adulthood". The Minister noted that Mr Thornton "has a history of mainly drug-related and violent offences since he was 16 years old" and referred to Mr Thornton having been fined and placed on probation, including as a result of his appearances in "juvenile courts", for offences "without any convictions being recorded". The Minister also stated that he considered that the fact that Mr Thornton had "repeatedly committed offences of or related to domestic violence, and other assault offences add[ed] more gravity to his offending" (emphasis added). Finally, in his concluding remarks, the Minister stated that he "gave significant weight to the serious nature of the crimes committed by Mr THORNTON, that are of a violent nature". As Mr Thornton's criminal history makes clear, the majority of his juvenile offences involved some form of violence.

Unsurprisingly, there was no dispute that the Minister had taken into account findings of guilt in relation to offences committed when Mr Thornton was a child for which no convictions were recorded. That concession was properly made.

Irrelevant consideration

The next question was whether that consideration – findings of guilt in relation to offences committed when Mr Thornton was a child for which no convictions were recorded – was an irrelevant consideration.

The requirement to read, identify, understand and evaluate the representations does not detract from established principle in respect of the types of errors that may be jurisdictional, including where a decision-maker took into account an irrelevant consideration. Accordingly, although the Minister was required to consider Mr Thornton's representations, which included references to his juvenile offending, if Mr Thornton's childhood offences for which no convictions were recorded were an irrelevant consideration for the purpose of the Minister coming to his decision as to whether to revoke the cancellation decision, he would be in error to consider those offences. Determining whether such an error occurred turns on the proper construction of s 85ZR(2) of the Crimes Act read with s 184(2) of the Youth Justice Act.

The task of construction must start with the text of each provision, having regard to its context and purpose. Further, the context is to be considered "at the first stage of the process of construction", where context is to be understood in its widest sense as including "surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole".

Issue:-

Is s 184(2) of the Youth Justice Act a law of a State under which a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State?

Consideration:-

Relevant legislation

Section 85ZR(2) of the Crimes Act provides that:-

"Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence."

Section 184(2) of the Youth Justice Act provides that:-

"Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose."

Intersection of s 85ZR of the Crimes Act and Youth Justice Act

Section 184 of the Youth Justice Act engages s 85ZR of the Crimes Act. The "particular circumstance[]" – the condition – referred to in s 85ZR(2) is found in s 184(2): a finding of guilt against a child has been made, and the court has decided, or been mandated, under s 183 not to record a conviction. Section 184(2) deems a person never to have been convicted of an offence and takes away the adverse consequences which attend a conviction. In sum, consistent with s 85ZR of the Crimes Act, ss 183 and 184 of the Youth Justice Act prescribe a particular circumstance in which a person – a child – is taken never to have been convicted of an offence under the law of Queensland.

Accordingly, s 85ZS(1)(d)(ii) of the Crimes Act engages s 184(2) of the Youth Justice Act so that the Minister could not take into account under s 501CA(4) of the Migration Act any of the findings of guilt made against Mr Thornton when he was a child for which no convictions were recorded, and, having regard to the express wording of s 85ZS(1)(d)(ii) and the expanded definition of when "a person shall be taken to have been convicted of an offence", the Minister could not take into account that Mr Thornton had been charged with offences committed when he was a child for which no convictions were recorded. The Minister therefore took into account an irrelevant consideration.

Jurisdictional error

The next question is whether the Minister's error in taking into account the irrelevant consideration of the findings of guilt made against Mr Thornton when he was a child, for which no convictions were recorded, was "material" in the sense that it deprived Mr Thornton of a realistic possibility that the decision made by the Minister could have been different if that irrelevant consideration had not been taken into account, so as to give rise to jurisdictional error.

The starting point, and what is critical, is the nature of the error in this case. Consideration of the nature of the error involves identifying the relevant "historical facts" as to what occurred in the making of the Minister's decision.

There is no bright line to be drawn to determine whether the particular error in a given case falls into one of the categories of error identified by the principal joint judgment in MZAPC v Minister for Immigration and Border Protection which necessarily result in "a decision exceeding the limits of decision‑making authority without any additional threshold [of materiality] needing to be met" by an applicant. The nature of the error has to be worked out in each case in the context of a particular decision under a particular statute; that is, a determination of whether the decision could have been different had the error not occurred "cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made".

The error in this case was "relevant to the actual course of the decision‑making". It was not suggested that it was an error that was, without any additional threshold, necessarily material. In this case, the course of the Minister's decision-making reveals that his taking into account of the findings of guilt made against Mr Thornton as a child, without convictions being recorded, infected the whole of his reasoning in coming to the conclusion that there was not "another reason" why the cancellation decision should be revoked.

Conclusion:-

The appeal be dismissed with cost.