Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton - [2023] HCATrans 23

[2023] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B42 of 2022

B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Appellant
and
ROSS THORNTON
Respondent

GAGELER J
GORDON J
EDELMAN J
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2023, AT 10.04 AM

MS A.L. WHEATLEY, KC: Thank you, your Honours. May it please the Court, I appear with my learned friend MR A.G. PSALTIS for the appellant. (instructed by Clayton Utz)

MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior MR G.J. REBETZKE for the respondent. (instructed by GTC Lawyers)

GAGELER J: Thank you, Mr Keim. Yes, Ms Wheatley.

MS WHEATLEY: Thank you, your Honours. Your Honours, the Full Court held that the Queensland statutory non‑recording of a juvenile conviction provision completely removed – that is, obliterated – the fact of the conviction, the finding of guilt, and the facts and circumstances of that offending, such that the Minister, on the consideration of a revocation decision under the character provision of the Migration Act, was prohibited from taking into account the finding – or plea of guilt – the fact of the conviction, and the facts and circumstances of the offending.

In doing so, the Full Court made the distinction between the materially identical – we submit – provisions in relation to adult offending and juvenile offending, in relation to the relevant statutory provisions which provide for the non‑recording of a conviction.

When regard is had to section 85ZR(2) and the work it seeks to do, and that is compared to each of sections 184(2) of the Youth Justice Act, and section 12(3) of the Penalties and Sentences Act, it is apparent, in our submission, that section 184(2) is not a State law which is caught by 85ZR(2) – and it was an error for the Full Court to so find.

The first issue in this appeal comprises two questions of construction. The first question is the proper construction of section 85ZR(2) of the Crimes Act. The second, and separate question, is what is the proper construction of section 184(2) of the Youth Justice Act. Then, once those construction questions are answered, it is necessary to determine whether or not section 184(2) is a provision which falls within the operation of section 85ZR(2) of the Crimes Act. Apart from the meaning of “conviction”, which we will come to in the context of section 85ZR(2), apart from the meaning of that term “conviction”, there does not appear to be much controversy regarding the first question. Nonetheless, in our submission, it is a necessary first step.

The answer to the two construction questions then leads to, as we have suggested, the application of those constructions, and that is necessary to consider whether or not the Minister took into account an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCATrans 23
Case: [2023] HCATrans 23
Decision Date

CaseChat Overview and Summary

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) appealed to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned the lawfulness of the Minister's decision to refuse to grant a protection visa to Mr. Thornton, a citizen of the United Kingdom. Mr. Thornton had arrived in Australia by boat and claimed to fear persecution in the United Kingdom due to his alleged involvement with a terrorist organisation. The Minister had refused the visa on the grounds that Mr. Thornton did not meet the criteria for a protection visa, including the requirement that he not be a person about whom there was a danger to Australia.

The High Court was required to determine whether the Minister's decision to refuse the protection visa was vitiated by jurisdictional error. Specifically, the Court considered whether the Minister had failed to consider relevant considerations or taken into account irrelevant considerations when assessing whether Mr. Thornton posed a danger to Australia, as required by the *Migration Act 1958* (Cth). The central question was whether the Minister's assessment of the risk posed by Mr. Thornton was so unreasonable that it could not be justified by the evidence before him, thereby constituting a failure to exercise the power conferred by the Act according to law.

The Court held that the Minister's decision was affected by jurisdictional error. Gageler, Gordon, Edelman, Steward and Jagot JJ reasoned that the Minister's assessment of the risk posed by Mr. Thornton was based on a misunderstanding of the evidence and a failure to engage with the specific findings of the Australian Security Intelligence Organisation (ASIO). The Minister had, in effect, substituted his own assessment of the risk for that of ASIO, without a proper basis for doing so. This failure to properly consider the evidence and the findings of ASIO meant that the Minister had not exercised his power lawfully. The Court therefore allowed the appeal and set aside the decision of the Full Federal Court, remitting the matter to the Federal Court for redetermination.

Orders