Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/9

Beech-Jones J

BEECH-JONES J. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton, the Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Pursuant to ss 183(2) and 184(2) of the Youth Justice Act 1992 (Qld) respectively, no conviction was recorded for those offences and they were "not taken to be a conviction for any purpose".

This application, brought in the Court's original jurisdiction, seeks certiorari in respect of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel the plaintiff's visa under s 501(2) of the Migration Act. It raises the same issue as Thornton except that, in this case, the delegate took into account offences for which the plaintiff was sentenced by the Children's Court of New South Wales when he was under 16 years of age. A "National Police Certificate" that was provided to the delegate described the plaintiff as having been "convicted" of most of those offences ("the police certificate"). However, s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) ("the Children Proceedings Act") precluded the Children's Court from proceeding to, or recording, any conviction for those offences.

For the reasons that follow, the relevant provisions of the Children Proceedings Act are not materially different to the provisions of the Youth Justice Act considered in Thornton, and the plaintiff's circumstances are not otherwise materially different to those of the respondent in Thornton. Consequently, the delegate was precluded by ss 85ZR and 85ZS of the Crimes Act from taking into account the offences for which the plaintiff was sentenced by the Children's Court when he was under the age of 16 years. As it was accepted by the Minister that those offences were material to the delegate's decision, it follows that the decision was affected by jurisdictional error and certiorari quashing the decision to cancel the plaintiff's visa should issue.

Background

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.