Juvenile offending, convictions and visa cancellation: Thornton and Lesianawai
2.4.2024
The deportation of people who have lived in Australia for most of their lives – since they were children, or sometimes infants – has become an increasing feature of Australian immigration law over the last few decades. Two recent decisions of the High Court address a particular aspect of that practice: the consideration in visa cancellation decisions of offences committed when a person was a child.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17, the High Court held that offences committed as a child for which convictions were not recorded under s 184 of the Youth Justice Act 1992 (Qld) are irrelevant considerations in a visa cancellation decision, by the operation of s 85ZR of the Crimes Act 1914 (Cth). In Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6, the Court extended that holding to comparable legislation in New South Wales.
The issue in each case was one of statutory construction as to the interaction between s 85ZR and the relevant State legislation. The two cases illustrate the complexity that arises both from the ‘protean nature’ of the term ‘conviction’, and the overlay of attaching Commonwealth administrative consequences to State criminal laws. In this post I summarise how the construction questions were resolved, and consider the implications for other sentencing legislation and decision making in visa cancellation cases.
Thornton
Ross Thornton is a citizen of the United Kingdom who has lived in Australia since he was three years old. He was convicted of domestic violence offences when he was 21 years old and sentenced to two years’ imprisonment. As a result, his permanent visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). On 26 April 2019, the Minister for Immigration made a personal decision not to revoke the cancellation under s 501CA(4) of the Act. In making that decision, the Minister took into account that Mr Thornton had begun ‘offending as a minor and had a number of offences recorded before reaching adulthood’ and ‘has a history of mainly drug-related and violent offences since he was 16 years old’ (Thornton at [49]).
Mr Thornton sought judicial review of the Minister’s decision, arguing that s 85ZR(2)(b) of the Crimes Act operated to make his offences committed as a child an irrelevant consideration. The primary judge dismissed the application, and then the Full Federal Court allowed an appeal. The Minister appealed from the orders of the Full Court.
Section 85ZR(2) of the Crimes Act 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:
…
(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)
The consequences of s 85ZR(2) being engaged include that, by s 85ZS(1)(d), ‘anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence’.
The issue was whether the relevant provisions of the Queensland Youth Justice Act met the description in s 85ZR(2). The Youth Justice Act provides a code for dealing with children who have committed an offence ‘in a manner appropriate to their unique needs and circumstances as children’ (Thornton at [23]). The orders that a court may make operate on a finding of guilt, under s 175. The default position under s 183 is that ‘a conviction is not to be recorded against a child who is found guilty of an offence’, providing a discretion to record a conviction in relation to certain sentencing orders. Section 184(1) specifies matters that a court must have regard to in deciding whether or not to record a conviction. Critically, s 184(2) provides:
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.
By 4:1 majority (Gageler and Jagot JJ, Gordon and Edelman JJ, Steward J dissenting), the Court held that s 85ZR(2) was engaged. As a result, the Minister took into account an irrelevant consideration – being Mr Thornton’s ‘youth offending’ (at [36], Gageler and Jagot JJ), or the charges or findings of guilt made against him (at [74], Gordon and Edelman JJ). The consideration of those matters was material to the Minister’s conclusion about Mr Thornton’s risk of reoffending, and so gave rise to jurisdictional error (at [37]-[38], Gageler and Jagot JJ; [78]-[79], Gordon and Edelman JJ).
As Gageler and Jagot JJ reasoned, the key feature of the scheme of the Youth Justice Act was that a finding of guilt for which no conviction is recorded ‘is not, and is not taken to be, a conviction for any purpose’ (at [33]). It followed that s 85ZR(2) operated and the ‘corresponding purpose’ was ‘any purpose’, including the consideration of whether to revoke the cancellation of a visa (at [36]). Justices Gordon and Edelman took a slightly different interpretive path to the same result (at [58], [73]-[74]).
The scheme was accordingly distinguished from the non-recording of a conviction in respect of an adult under s 12(3) of the Penalties and Sentences Act 1992 (Qld), which had been held by Kiefel J in Hartwig v Hack [2007] FCA 1039 not to engage s 85ZR. The Penalties and Sentences Act defines ‘conviction’ in s 4 to mean ‘a finding of guilt, or the acceptance of a plea of guilty, by a court’. The effect is that a person is in fact ‘convicted’, even if no conviction is recorded, such that s 12(3) is not a provision which ‘removes or disregards the conviction altogether’ (Hartwig v Hack at [11]; Thornton at [24]-[27]). This contrast is relevant for the operation of s 85ZR on other legislative provisions.
One further interpretative complication warrants noting – s 85ZM of the Crimes Act, a provision that appears to have been overlooked prior to the application for special leave. Section 85ZM(1)(b) relevantly provides ‘for the purposes of this Part, a person shall be taken to have been convicted of an offence if … the person has been charged with, and found guilty of, the offence but discharged without conviction’. The Minister argued that this provision defined ‘conviction’ in a way precluding s 184 of the Youth Justice Act from engaging s 85ZR, because a ‘finding of guilt’ remained, such that it could not be said that the person was taken never to have been ‘convicted’ of the offence. Gageler and Jagot JJ characterised s 85ZM as a ‘deeming, not definitional, provision’ in relation to State laws (at [11]), effectively limiting its operation to being a precursor to s 85ZR(2) which then operated on the deemed state of affairs (at [13], [33]). Gordon and Edelman JJ appeared to contemplate that s 85ZM was definitional in that it had work to do for s 85ZS: the Minister was precluded not only precluded from taking into account the findings of guilt, but also the fact that Mr Thornton had been charged with the offences (at [74]).
Lesianawai
In Lesianawai, the Court unanimously extended the result in Thornton to the NSW legislation concerning offending by children. A single judgment of Beech-Jones J (with whom Gageler CJ, Gordon, Edelman and Gleeson JJ all agreed) neatly distils Thornton and, I argue, gives s 85ZR a more expansive operation that may readily encompass other legislative schemes.
Isaac Lesianawai is a citizen of Fiji who arrived in Australia when he was four years old. He was found guilty of a number of offences when he was under 16 years old. As an adult, he was sentenced to lengthy terms of imprisonment for robbery offences. On 9 October 2013, a delegate of the Minister cancelled Mr Lesianawai’s permanent visa under s 501(2) of the Act (pre-dating the introduction of the mandatory cancellation provisions in 2014).
Because Mr Lesianawai missed the statutory timeframe to appeal to the Administrative Appeals Tribunal, his only avenue for recourse was to seek judicial review of the delegate’s decision in the original jurisdiction of the High Court. (As an aside, the convoluted procedural history outlined at [11]-[13], and the nine year extension of time granted by the High Court, underscores the real need for the short and inflexible statutory timeframes for seeking merits review of visa cancellation decisions to be amended to provide for discretionary extension.)
The relevant NSW legislation was s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), which provides that a court ‘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’. A court has a discretion under s 14(1)(b) to refuse to proceed to or record a conviction in respect of a summary offence by a child who is 16 or above.
Section 15(1) restricts the use that may be made of a finding of guilt in any criminal proceedings that might subsequently be taken against the person other than in the Children’s Court.
Notably, the NSW legislation does not contain a ‘deeming’ provision comparable to s 184(2) of the Youth Justice Act. Nonetheless, Beech-Jones J held that the provisions similarly ‘reflect a clear distinction between a finding of guilt and a conviction’ (at [32]). The ‘effect’ of the provisions ‘is that a finding of guilt was not to be treated as a conviction for any purpose unless that Act or other legislation specifically so provided’ (at [34]). As a result, ss 85ZR(2) and 85ZS of the Crimes Act operated to preclude the delegate ‘from relying on those convictions (or the findings of guilt they embody)’ (at [35]).
The focus on the effect of the State law – looking to substance rather than form – would seem to extend the potential operation of s 85ZR. In Thornton, at least Gordon and Edelman JJ appeared to envisage that a deeming provision would be required (at [57]). After Lesianawai, it is clear that there is no need for a State law to ‘take away the fact of’ a conviction (at [36]-[39]). Rather, Beech-Jones J reasoned from the absence of any statutory provisions limiting the purposes for or circumstances in which a finding of guilt without conviction under s 14(1)(a) is treated or taken as not having been convicted, to hold that the effect of the State law is that the person is taken never to have been convicted for all purposes (at [41], [44]).
The result might be taken to reflect an implicit appreciation that it would be undesirable for such matters of form to result in the inconsistent treatment of young offenders as between different States, where deeply significant administrative consequences are concerned.
Application to other sentencing legislation
The application of s 85ZR to other State schemes for youth offenders falls to be determined on the construction of the particular legislative provisions – including any historical versions of legislation at the time of relevant court outcomes (Lesianawai at [33]).
Importantly, the implications are not confined to juvenile offending. On the application for special leave in Thornton, senior counsel for the Minister pointed out that the Victorian legislation in relation to adult offending was relevantly indistinguishable. That legislation is s 8(2) of the Sentencing Act 1991 (Vic). The consideration of non-conviction outcomes (and spent convictions) in visa cancellation decisions will accordingly now require careful attention to State legislation.
Implications for visa cancellation decisions
Thornton and Lesianawai extend a modest protection to individuals facing visa cancellation, by giving effect to State legislation that is tailored to consider the appropriate outcomes for children who commit offences. The judgments should not be viewed as a matter of mere technicality, but an opportunity to reorient decisions to have appropriate regard to the criminal law principles and processes that precede a person’s liability for visa cancellation. In relation to juvenile offending, those principles recognise the particular circumstances, rights and needs of children (see Lesianawai at [26]; Thornton at [16], [23]).
The Minister has argued in some cases in the wake of Thornton that it remained permissible to take into account the underlying conduct making up an offence, as distinct from the finding of guilt or conviction, where there was probative material available. In GKYW v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1543, the Tribunal stated it would take that approach, and proceeded to refer to the applicant’s ‘offences’ and ‘offending’ as a juvenile. The Minister conceded that this involved error, but sought to defend the decision on the basis that the error was not material. Where the Tribunal had repeatedly referred to GKYW’s juvenile offending, and included that offending in statements of the date span and number of his offences, Moshinsky J was satisfied that the Tribunal’s consideration of the protection of the Australian community could have been ‘calibrated differently’ absent the consideration of juvenile offending, such that there was a realistic possibility of a different result (at [39]).
It is true that the broad scope of visa cancellation decisions permits consideration of ‘conduct’ and not only offending, and it is open to a decision-maker to find that conduct that could amount to a criminal offence has occurred, even absent any charge or conviction. However, there are clear difficulties in an administrative decision-maker attempting to divorce ‘conduct’ from a charged and determined offence. That would appear to require a new adjudication of the facts underlying the charge, on whatever (often limited) evidentiary record is before the decision-maker. It would be undertaken in circumstances where that decision-maker in fact knows, but legally must disregard, the charge and finding of guilt that followed. It is hard to envisage how that could be achieved, let alone how it would fit with the established principle that a decision-maker cannot ‘impugn or question the essential factual findings’ that underpin a conviction or sentence relevant to a visa cancellation decision.
Even if such a feat is possible, it is another question whether it should be undertaken within the framework of the Act, and of Ministerial Direction 99, which now recognises the significance of a person’s formative years spent in Australia. Character decisions under the Act are an area prone to disproportion (see, eg, the case of EPU19 who was indefinitely detained on the basis of offending at age 14-15 for which no conviction was recorded). I suggest that paying due regard to the principles underpinning a non-conviction outcome for a child, and the purpose of s 85ZR, might serve to point away from such an approach.
Kate Bones is a barrister at Banco Chambers.
Suggested citation: Kate Bones, ‘Juvenile offending, convictions and visa cancellation: Thornton and Lesianawai’ (2 April 2024) <https://www.auspublaw.org/blog/2024/4/juvenile-offending-convictions-and-visa-cancellation-thornton-and-lesianawai/>