Was delegate's decision affected by jurisdictional error by considering the offences committed by plaintiff when under 16 years of age notwithstanding Sections 85ZR and 85ZS of the Crimes Act, 1915 (Cth)?

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024)

Intro:-

The plaintiff commenced proceedings in the High Court's original jurisdiction seeking certiorari to quash the delegate's decision to cancel the plaintiff's visa under s 501(2) of the Migration Act, 1958 (Cth).

Facts:-

The plaintiff was born in July 1983. He is a citizen of Fiji. He arrived in Australia with his parents and siblings in January 1988. In November 1999, he was granted a Class BF 154 Transitional (Permanent) visa permitting him to remain in Australia permanently.

From 1996 until 2001, the plaintiff either pleaded guilty to, or was found guilty by the Children's Court of, numerous offences including multiple counts of robbery in company.

In August 2003, he was convicted of three counts of robbery while armed with a dangerous or offensive weapon. He was sentenced by the District Court of New South Wales to substantial terms of imprisonment for each offence ("the 2003 offences").

In May 2010, the plaintiff was convicted and sentenced by the District Court to terms of imprisonment for two offences of robbery while armed with a dangerous weapon and two attempts to commit such offences.

The issues paper and the delegate's decision

As at October 2013, s 501(2) of the Migration Act provided that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects the person does not pass the "character test" and the person does not satisfy the Minister that they pass that test. This power could be, and was, delegated.A person did not pass the character test if, inter alia, they had a "substantial criminal record", which included being sentenced to a term of imprisonment for 12 months or more. The sentences imposed for the 2003 and 2007 offences satisfied the definition of a substantial criminal record.

Placed before the delegate was a memorandum prepared by a departmental officer entitled "Issues for consideration of possible visa cancellation under subsection 501(2) of the Migration Act 1958" ("the issues paper"). The issues paper addressed the plaintiff's circumstances by reference to a direction made under s 499 of the Migration Act in relation to visa refusals and cancellations under s 501 of that Act ("Direction No 55"). Direction No 55 provided that any exercise of the discretion conferred by s 501 must be informed by principles that included the protection of the Australian community. By reference to that principle, the issues paper described the facts and circumstances of the 2003 and 2007 offences. The issues paper also advised the delegate that the plaintiff had other "serious convictions" for similar offences "dating back to 1996, when he was a juvenile aged 13".

The issues paper and its attachments, including the police certificate, were provided to the delegate. The delegate's reasons record that he took into account the plaintiff's convictions, including his "convictions" for offences for which he was sentenced by the Children's Court when he was under the age of 16 years.

Issue:-

Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence, did the delegate erroneously take into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age?

Consideration:-

Sections 85ZR and 85ZS

Sections 85ZR and 85ZS are found within Div 2 of Pt VIIC of the Crimes Act. Division 2 is entitled "Pardons for persons wrongly convicted, and quashed convictions". Section 85ZR(2) addresses the effect of a particular form of State or foreign law concerning convictions. It relevantly provides:

"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) ...

(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." (emphasis added)

Section 85ZR(2) operates "[d]espite any other Commonwealth law", including s 501(2) of the Migration Act.[15] For the purpose of s 85ZR(2), a "Commonwealth authority" includes a Commonwealth Minister, a Commonwealth department and a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, which includes the delegate.

Thornton

In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was "not taken to be", a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the "corresponding purpose" was "any purpose", including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that "[t]he Minister's consideration of Mr Thornton's youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act" (emphasis added).

The Children Proceedings Act, 1987 (NSW)

Relying on s 85ZR, s 85ZS and Thornton, the plaintiff contended that under a "State law", namely the Children Proceedings Act, he was "taken never to have been convicted" of (at least) the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for all but presently immaterial purposes.

.....

Within Div 3 of Pt 2 was s 14, which provided:

"Recording of conviction

(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:-
(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and

(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

The "convictions" and findings of guilt could not be considered

The plaintiff contended that, once it is concluded that he is taken never to have been convicted of the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for any purpose, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody). This contention should be accepted.

...

Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending" and "finding[s] of guilt" that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.

Conclusion:-

It was not disputed by the Minister that, if it was accepted that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act precluded the delegate from considering the plaintiff's "convictions" for which he was sentenced by the Children's Court when he was under the age of 16 years, then the delegate's decision was affected by jurisdictional error. This concession extended to accepting that the erroneous consideration was material to the delegate's decision. Those concessions were rightly made. It follows that a writ of certiorari should issue quashing the delegate's decision. The Minister should pay the plaintiff's costs.