Commonwealth of Australia v Cornwell

The Commonwealth of Australia appealed to the High Court of Australia against a decision of the Full Federal Court concerning the interpretation of section 118 of the *Migration Act 1958* (Cth) and its application to Mr. Cornwell, a New Zealand citizen who had been convicted of serious criminal offences in Australia. The dispute centred on whether Mr. Cornwell was entitled to a visa under the Trans-Tasman Travel Arrangement, despite his criminal record.

The High Court was required to determine whether the Full Federal Court had erred in finding that Mr. Cornwell possessed a special circumstance that would justify the grant of a visa under section 118 of the *Migration Act*, notwithstanding his failure to meet the character requirements. Specifically, the court had to consider the nature and weight of the "special circumstances" that might override the general prohibition on granting visas to non-citizens with significant criminal convictions.

The High Court held that the Full Federal Court had misconstrued section 118 by placing undue emphasis on the fact that Mr. Cornwell had been granted bail and had been living in the community for a significant period following his conviction. The court reiterated that section 118 requires a consideration of circumstances that are truly exceptional and that the mere passage of time or the absence of further offending, while relevant to general character, did not, in themselves, constitute special circumstances sufficient to override the clear policy of the Act regarding character requirements. The court found that the Full Federal Court had applied an incorrect legal standard in assessing what constituted "special circumstances."

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for redetermination in accordance with the High Court's reasons.