Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs

The High Court of Australia considered the appeal of Lesianawai against the Minister for Immigration, Citizenship and Multicultural Affairs concerning the cancellation of the appellant's visa. The dispute arose from the delegate of the Minister cancelling the appellant's permanent visa under section 501(2) of the *Migration Act 1958* (Cth) due to the appellant not passing the character test. This test was not met because the appellant had a substantial criminal record, including convictions for robbery offences committed as an adult. Crucially, the delegate also took into account robbery offences committed by the appellant when he was under 16 years of age, which were listed on a National Police Certificate as "convictions".

The central legal issue before the High Court was whether the delegate's decision to cancel the appellant's visa was affected by jurisdictional error. Specifically, the court had to determine if the delegate erroneously took into account matters that were precluded by sections 85ZR(2)(b) and 85ZS(1)(d)(ii) of the *Crimes Act 1914* (Cth) by considering the offences committed by the appellant when he was under 16 years of age. The appellant argued that, under New South Wales law at the time of his offending, the Children's Court was prohibited from proceeding to or recording a conviction for an offence committed by a child under 16.

The High Court reasoned that, in accordance with section 85ZR(2)(b) of the *Crimes Act*, where a person is taken never to have been convicted of an offence under State law for a particular purpose, they must be taken by any Commonwealth authority in that State never to have been convicted of that offence for a corresponding purpose. The court found that the provisions of the *Children (Criminal Proceedings) Act 1987* (NSW) meant that the appellant was not convicted of the offences committed when he was under 16. Therefore, the delegate was precluded by sections 85ZR and 85ZS of the *Crimes Act* from taking these offences into account. As it was accepted that these offences were material to the delegate's decision, the decision was affected by jurisdictional error.

Consequently, the High Court ordered that a writ of certiorari issue quashing the decision of the delegate made on 9 October 2013 to cancel the plaintiff's Class BF 154 Transitional (Permanent) visa. The Minister was also ordered to pay the plaintiff's costs.