Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton

[2022] HCATrans 160

[2022] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 2022

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Applicant

and

ROSS THORNTON

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 SEPTEMBER 2022, AT 1.29 PM

Copyright in the High Court of Australia

KEANE J:   I will announce the appearances for the parties.

MS A.L. WHEATLEY, KC appears with MR A.G. PSALTIS for the applicant.  (instructed by Clayton Utz)

MR G.J. REBETZKE appears for the respondent.  (instructed by GTC Lawyers)

KEANE J:   Yes, Ms Wheatley.

MS WHEATLEY:   Thank you, your Honours.  Your Honours, the Full Court held that the Queensland statutory provision providing for the non‑recording of a juvenile conviction 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 provisions of the Migration Act, was prohibited from taking into account that finding or plea of guilt, the fact of the conviction and the facts and circumstances of the offending.  The legislative provisions, context and purpose of the character provisions in the Migration Act require a consideration of the non‑citizen’s character, being his or her enduring moral qualities, which would, in our submission, include a finding or plea of guilt, the fact of the conviction and the facts and circumstances of the offending, whether or not a conviction has been recorded.

The Full Court made a distinction between adult offending and juvenile offending in relation to the relevant statutory provisions which provide for the non‑recording of a conviction, meaning in the context of the character provisions under the Migration Act, the Minister and decision‑makers can take into account the circumstances of offending, being the finding or plea of guilt, the fact of the conviction and the facts and circumstances of the offending when no conviction is recorded for adult offenders, but not for juvenile offenders.  That offender may be the same person, of course, at different points in time.  This, we submit, was contrary to principle.

A conviction order or a non‑recording of a conviction is not the opposite of a conviction.  It is a sentence or part of a sentence upon the offender, that is, a person who is found guilty.  The sentencing process of recording or not recording a conviction assumes that there is already a finding of guilt, a conviction.  It is then, as part of that sentence, whether that conviction will be recorded or not.  The mere non‑recording of a conviction cannot, we submit, completely remove or wipe clean or erase from that person’s history the circumstances of the offending.

This matter provides a suitable vehicle for the questions that we raise, being whether the Minister and decision‑makers under the character provisions of the Migration Act can consider the circumstances of the offending, being the finding or plea of guilt, the fact of the conviction and the facts and circumstances of the offending and, more particularly, whether State or Territory legislation, here being the Queensland legislation pursuant to which a conviction is not recorded, fall within the ambit of section 85ZR(2) of the Crimes Act.  In this matter ‑ ‑ ‑ 

EDELMAN J:   Ms Wheatley, you do not suggest, do you, that there are significant numbers of children who the Minister seeks to deport on the basis of State or Territory convictions that were not recorded?

MS WHEATLEY:   No, your Honour, we are not making that submission.  What we would submit is that in the context of a person – and that person at the time of the consideration of the Minister’s decision may be an adult, but that their history, which may include juvenile offences – that that history and the facts and circumstances of that history is a matter that the Minister is permitted to take into account in considering that enduring moral quality of that particular person.

EDELMAN J:   But, in those circumstances, is there likely to be a significant group of children or adults with no other relevant offences or other relevant offences that would not otherwise empower the Minister’s exercise of discretion where taking into account an unrecorded State or Territory conviction would make any difference?

MS WHEATLEY:   Your Honour, I am conscious of not giving evidence from the Bar table, but there are already seven or eight, or five – five or six matters where the Tribunal has been in a position of having to consider this matter due to a person’s history and whether or not they can take into account those matters.

Of course, it should be noted that not only might that criminal offending as a juvenile be a matter that is potentially adverse to a person, but there could have been circumstances where there could be a rehabilitative effect or conduct of that person such that their conduct at that time – one can then see, actually, a decrease in the seriousness of their offences. 

But, in any event, what we say is that all of those matters are something that is relevant to consider to the character of that particular person in the context of decisions under the Migration Act. 

STEWARD J:   Can I ask a question, Ms Wheatley?  The Minister’s reasons, in this case, under section 501CA – I presume the Minister was aware of the fact that convictions were not recorded?

MS WHEATLEY:   Yes, he was, your Honour.  He expressly refers to that – this is in application book 1, at paragraph 28 of the Minister’s decision he does expressly note:

without any convictions being recorded –

in relation to the appearances in 2012 to 2014.

STEWARD J:   So, it is not as if he has acted in defiance of section 85ZR, which tells him that he must treat the matter as one where there are no convictions that have taken place. 

MS WHEATLEY:   Well, your Honour, if the – sorry, your Honour.

STEWARD J:   I was just going to say, do you, in that respect, do you say it would have been perfectly permissible for the Minister, for the purposes of assessing risk, to have said something along the lines of, I can take into account the fact that the conduct took place, in assessing risk, but I acknowledge that because of the youth of the person at the time no conviction was recorded?

MS WHEATLEY:   Yes, your Honour.

STEWARD J:   Is there anything in 85ZR that would stop the Minister doing that?

MS WHEATLEY:   Well, we submit no, there is not, your Honour.  What we say is that section 184(2) of the Youth Justice Act is not actually a provision which falls within the ambit of section 85ZR(2), but that is contrary to what the Full Court held; they held that section 184(2) of the Youth Justice Act does fall within the ambit of section 85ZR(2) of the Crimes Act such that – and because of the reason that they said – not only is it the recording of the conviction, it is all the facts and circumstances and the fact of the finding of guilt, which is completely removed from a person’s history such that the Minister could not look at any of those circumstances.  That is what we say is the error in the Full Court’s approach.

Your Honour, if I may, just while we are considering the provision of 85ZR(2), relevant to that is section 85ZM, which provides the actual meaning of conviction for the purposes of the Crimes Act.  This was a provision that the Full Court did not take into account when seeking to construe 85ZR(2) but, in our submission, section 184(2) would fall within 85ZN(1)(b), a person has been charged with, and:

found guilty of the offence, but discharged without conviction –

which we would say also includes the entry of the conviction, such that it actually does not fall within the ambit of 85ZR(2) on a proper construction of that provision.  Your Honour, we would submit that the Migration Act recognises differences between the criminal conduct as opposed to criminal convictions being discharged at entry of a conviction, a conviction being quashed or a pardon being granted.

Further, in this context, the use of the terms “character test”, “character grounds”, “not of good character”, and to “engage in” or be “involved in criminal conduct” all provide, in our submission, the relevant context for the construction of the provisions in Part 9, Division 2 of the Migration Act, which I have broadly been calling the character provisions. 

The legislative purpose of those character provisions is directed to the entry into and presence in Australia of certain non-citizens who are unable to satisfy the character test and the protection of the Australian community.  In our submission, as we have referred to, that “character” refers to that person’s enduring moral qualities.

In the context of the Minister’s decision in this case, the respondent had committed offences as a juvenile and as an adult.  In relation to the adult offences, where no conviction was recorded, the Full Court accepted the reasons in Hartwig such that those matters did not fall within section 85ZR(2) of the Crimes Act and therefore, they could be taken into account.

However, the Full Court held that the Youth Justice Act provision 184(2) in relation to the juvenile offending where no conviction was recorded was a provision which completely removed the finding of guilt.  It completely removed that conviction entirely, such that it was held that the effect of 85ZR(2) was to take away the fact of the conviction, and the facts and circumstances of the offending such that it could not be taken into account.

EDELMAN J:   Ms Wheatley, can I just come back to the question that I asked you sort of at the outset in light of that submission, which is really, if this Full Court decision – assuming for the moment that your submissions on the content of the law were correct, and the Full Court decision were allowed to remain – would there really be any decisions, or any cases that would really be treated any differently, if the Minister is take out of account juvenile – effectively, spent convictions, and only to look at the rest of a record, including any adult spent convictions?

MS WHEATLEY:   In short answer, yes, your Honour.  There is a couple of difficulties, we say, that do arise if the Full Court’s decision is allowed to stand.  There is the potential difficulty for other States’ legislation – particularly, say, for example, in Victoria, where the text of their legislation, but in relation to adult offending, is the same as what it is under the Queensland provision for the Youth Justice Act in section 144(2).

Now, we will go where we appreciate that the Full Court construed it, both the text and context – if I can paraphrase in that way – it is important to note that the text of the Victorian provision is exactly the same in relation to adult offending as to juvenile offending.  What we submit ‑ ‑ ‑

KEANE J:   Miss Wheatley, you have frozen, I am afraid, and we have lost audio.

MS WHEATLEY:   Sorry, your Honours.  Thank you, sorry, my stream ‑ ‑ ‑

KEANE J:   You might need to start about a minute ago.

MS WHEATLEY:   Thank you, your Honour.  With the Victorian provisions, I was addressing that the adult sentencing provisions in Victoria are drafted the same, as are others that we have referred in a written outline.  They are the same, though, as the youth offending provisions under the Youth Justice Act in Queensland, and what ‑ ‑ ‑

EDELMAN J:   The Full Court, Ms Wheatley, was quite clear, were they not, that their construction was a heavily contextual one, which was focusing upon the purposes of the Youth Justice Act, and that those purposes did not extend to adult offending – even adult offending that was not recorded.

MS WHEATLEY:   They did, your Honour, but, if I may, they did it in two ways, the first of which is, they did not only rely on context, they did rely on the text – and they relied on the text, in our submission, in error by not reading in the definitions of conviction under the Penalties and Sentences Act and the definition of finding of guilt under the Youth Justice Act.  Once they are read in, in our submission, the text is the same.

They also seemed to rely on an indefinite‑definite article argument about the text, but I do not propose to dwell on that.  They did – it is true to say – rely heavily on the context.  In our submission, that context, though properly looked at, is actually in relation to that antecedent step.  That antecedent step is whether or not to impose the conviction, and that there is a primary focus on youth offenders, and that there is greater weight to be given to rehabilitation and to the youth in those circumstances, but that once the conviction is recorded, or not recorded, in our submission, the result – whether or not the person is a juvenile, or whether or not they are an adult – should be – and, when principles are looked at, is – the same.  That is where we say the anomalies really will arise in relation to future decisions if this decision is allowed to stand as it is.

STEWARD J:   Ms Wheatley, do you put an argument at all along the lines that we have to read the migration regime along 85ZR, and then, when one looks at the function and purposes of the relevant provisions of the Migration Act, 501 and then 501CA, that they trump 85ZR in any way?

MS WHEATLEY:   No, your Honour.  We do not say that the Migration Act trumps the Crimes Act, if I can borrow that expression.

STEWARD J:   No, I would not say the entire Migration Act.  I am just talking about these particular provisions, 501, which deal with, for instance, automatic cancellation if you are convicted for more than twelve months and then the revocation regime.

MS WHEATLEY:   No, we do not say that.  We did accept below and we do accept in this Court that if it is a provision, as was described in Hartwig, of properly answering the description of 85ZR(2), then that would be an irrelevant consideration.  But what we say is that, properly, section 12(3) of the Penalties and Sentences Act is the same and should be construed the same as section 184(2) of the Youth Justice Act, such that neither one of them answer the description in 85ZR(2).  That is even more so when consideration is given to the definition of 85ZM in 1(b) to a conviction.  Thank you, your Honour.

Sorry, your Honours, I have gone a little off track, if you could bear with me for just a moment.  The contextual matters – if I may pick up on that theme – that the Full Court relied upon included matters that did also include section 148 of the Youth Justice Act.  In our submission, though, that section does not provide the contextual support that was sought if the fact of the conviction or the facts and circumstances of the offending was completely removed by section 184(2), in our submission 148 would have no work to do.

Your Honours, in the interests of time, we have dealt with one of the potential anomalies that can arise under the findings or in the way that the Court has interpreted the provisions in relation to a juvenile being in detention, but then under a revocation decision not being able to take into account that circumstance.  But there is also a possibility that such an

interpretation might mean there is no ability to cancel at all if that juvenile was actually in detention at that time.

We have dealt with the question of materiality in the written outline, and it is a short point.  It is merely in relation to the sufficiencies of reasons that the Full Court – in our submission – did not provide, and hence they did not consider the position as from the Minister’s position and that focus on the domestic violence offences that the Minister had.

In conclusion, your Honours, we submit that there are three reasons why special leave should be granted.  First, the construction applied by the Full Court, with respect, was wrong and contrary to principle, and is contrary to the observations of the Queensland Court of Appeal that those provisions are in identical terms in relation to those sentencing provisions, and hence a decision of this Court is needed to settle the opinions of the intermediate appellate courts.

Second, that the construction can lead – as I have just been outlining – the inconsistent results as between different States and Territories in a consideration of the character provisions under the Migration Act.

Thirdly, that construction can also lead to anomalous outcomes on the application of the different provisions under the Migration Act when a conviction is not recorded for a juvenile.  For all of those reasons, your Honours, we submit this is an appropriate case for the grant of a special leave.  If your Honours please.

KEANE J:   Thanks, Ms Wheatley.  Mr Rebetzke.

MR REBETZKE:   May it please the Court.  On the question of whether this is a suitable vehicle to examine the question of whether the Minister could take into account the circumstances of the offending, the only material before the Minister in that regard was the criminal history – in relation to these particular offences was the criminal history in the National Police Certificate, so there was nothing before the Minister regarding the circumstances of the offending other than the name of the offence and the sentence that was imposed and the fact that no conviction had been recorded.  So, in my submission, this is not a case which that question could be resolved.

STEWARD J:   Can I ask, if that is the case, if all the Minister had was the National Police Certificate and was assessing risk based on that, then would his decision not then have fallen foul of the decision of the Full Court in the Federal Court in Splendido where the court said that an examination of a bare National Police Certificate without more is not a ground for determining risk lawfully under 501CA?

MR REBETZKE:   That may be the case, I am unfamiliar with Splendido, so I am unable to assist your Honour.

STEWARD J:   But just to confirm, there is no other – no police submissions, or magistrate’s sentencing remarks, or not sentencing remarks, or whatever, nothing like that?

MR REBETZKE:   There were certainly sentencing remarks in relation to later offences and, in particular, the offence which caused him to trigger section 501(3A), so, that caused him to be the subject of a mandatory cancellation on character grounds.  Certainly, sentencing remarks, et cetera, of that nature, but in respect of these historical convictions – and I use the term “conviction” reservedly – in respect of those historical convictions, for which no conviction was recorded, as a child, the only evidence was that contained in the National Police Certificate.

STEWARD J:   Thank you, Mr Rebetzke.

MR REBETZKE:   Thank you.  So, the question raised by the proposed ground 1(a) is essentially whether the Youth Justice Act regime for non‑recording of convictions for children in Queensland is one that operates in the way contemplated by section 85ZR(2) of the Crimes Act, or is it like the regime that applies in Queensland for adult offenders, as held by the Federal Court in Hartwig, merely a non-recording provision, or specifically section 184(2) of the Youth Justice Act.

The Court below was correct in finding that in the case of the Youth Justice Act that deals with children but it is not a mere non-recording provision, but it had substantive effect, to, in effect, to take away the fact of the offending.

That was a question of statutory interpretation that required examination of both the Crimes Act provision and the Youth Justice Act, although the Full Court did no more than adopt and apply the interpretation given to the Crimes Act provision by Justice Kiefel – as her Honour then was ‑ in the Hartwig Case.  That is, whether the nature of State legislation is one which deemed the person never to have been convicted of an offence; that the effect must be such as to take away the fact of the conviction as a pardon might do, and it envisages a provision which removes, or disregards the conviction altogether.

Now, the Full Court reached a conclusion not only based upon the apparent deliberate choice made by the drafters of the legislation to use the term consistently in the Youth Justice Act “finding of guilt”, rather than “conviction”, but also various other contextual matters, which particularly are those contained in section 148 and 154 of the Youth Justice Act ‑ and also the purpose of the Youth Justice Act being an Act that deals specifically with children, and it is to be noted that children have their own set of human rights.  Australia has ratified and had by this stage ratified the Convention on the Rights of the Child, for example.

So, the purpose of this legislation was to deal specifically with the question of offending by children, and the Full Court was correct in finding that the Act had a child‑centred approach.  I do not want to re‑hash and go over all of the arguments, but I did want to take the Court specifically to subsection (3) of section 184, which can be found in the book at page 578.  That section says that:

A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against a child for the same offence as if a conviction had been recorded.

The first thing to note is that there is no specific provision in the adult legislation that provides a bar to future proceedings – in effect, a plea of autrefois convict.

The question has to be: why was it necessary, in subsection (3) of section 184, to provide a specific defence of autrefois convict, when there is – in Queensland law – and to be found in section 17 of the Criminal Code (Qld), a defence of autrefois convict, which is based upon the fact of a conviction.

If the effect of subsection (2) was not to remove the fact of conviction, what would be the purpose of subsection 3?  I submit that subsection (3) was, in fact, necessary because subsection (2) has the operation which is contemplated by section 85ZR(2) and was expanded on by Justice Kiefel – as her Honour then was – in Hartwig.  The fact that there is no similar, specific bar against future convictions for – in respect of the same offence in the adult legislation was presumably unnecessary because, as held in Hartwig, the provisions in the Penalties and Sentences Act do not operate in the same way such as to take away the fact of conviction.

I also point to the fact that in the youth justice regime the default point in relation to all offences committed by children is that no conviction will be recorded.  A recording of a conviction is an exceptional matter, and there are some circumstances in which, and this is provided in section 183, there are some circumstances in which there is no power of the court to convict.  That is an entirely different regime to that that adults are subject to in the Penalties and Sentences Act.

In respect of the applicant’s submissions regarding the Victorian legislation and the Northern Territory and there was one other, any decision made on appeal by the High Court in this matter could have no bearing on the outcome in respect of those schemes, because the outcome would necessarily require a consideration of not only the text which my learned friend says is relevantly identical in respect of one particular provision, but the context, and it is to be noted that none of the legislative provisions pointed to by the applicant are ones which specifically deal with the question of children.

There is no anomalous circumstance that is likely to arise as raised by the applicant.  If the fact which causes a person to fail the character test in section 501 is in fact a conviction for which no conviction is recorded as a child, so we have the situation where a child is in detention, presumably, and the Minister is considering whether – is thought to be bound to make a decision to cancel a visa, if that fact is relevant for the character test under section 501, it must also be relevant in respect of the question under section 501CA in respect of whether a decision should be made to revoke that mandatory cancellation on character grounds.

That is because one of the limbs of the question to be determined by the Minister or his delegate in section 501CA is whether the person fails the character test.  Of course, it is quite likely that in those circumstances that, if submissions are made on or on behalf of the child, and that child wants to talk about or make submissions about the offending, then those submissions will, in accordance with authority be required to be given accurate consideration.  So it is not a case, as contended by the Minister, that in those circumstances the Minister or his delegate would be forbidden from considering those circumstances.  So, it is submitted that what is said to be an anomalous situation caused by the Full Court’s decision does not arise.

In summary, it is submitted that the decision of the Full Court is not inconsistent with Hartwig.  In fact, it merely applies the principles in Hartwig and comes up with a different conclusion based on the text and context of the particular statute.  There is no particular inconsistency with the Migration Act.  The question of adult sentencing legislation in other States is a question for another day.  There are no anomalous results.  It does not conflict with the Court of Appeal decisions identified by the Minister, they were observations made by the Court of Appeal in a couple of cases which deal with quite a different question altogether and the Full Court in fact referred to a different case by the Court of Appeal which recognised that there would be a different weighing of factors in relation to the question of the non‑recording of the conviction of a child.

So, in my submission, there is little doubt that the decision of the Full Court is correct.  I do not propose the materiality ground.  I submit that the reasons of the Full Court are sufficient in disclosing why the error of the Minister is material to the outcome.  And, other than that, I would merely wish to say that my client is presently residing in the United Kingdom.  He has no desire to become a party to litigation in the High Court on what is suggested by my learned friend to be a matter of public importance, and of general application to other decision‑makers under the Migration Act.

If the Court were disposed to grant special leave, then, in my respectful submission, it should be conditional upon the applicant, given the undertakings as to costs that he has indicate in the application he is willing to give, that is, to meet the respondent’s costs of this application and of the proposed appeal, and not seek to disturb the costs orders below.

However, for the reasons I have outlined both orally and in writing, it is respectfully submitted that special leave would not be granted. May it please the Court.

KEANE J:   Thank you, Mr Rebetzke.  Yes, Ms Wheatley, anything in reply?

MS WHEATLEY:   Yes, thank you, your Honours.  Just a couple of short points.  In relation to the submission that the police certificate – and I think it was correct that that was the only matter before the court, there are the sentencing remarks of the magistrate in relation to the February 2018 appearances, which commence at page 23 of the application book.  There is also a reference in the psychologist’s report at page 73 in relation to the public nuisance offence, which was committed in 2014.  And, there is the respondent’s own submissions ,relevantly at pages 88 and 89 which outline the offences which he said he:

acknowledges and accepts all offences on his criminal history –

In terms of the application of section 85ZR, with the addition of the definitions from 85ZL in it applying to Commonwealth authorities, in our submission, it does have wide ambit and does have broad application.

In relation to the submission that there would not be any inconsistencies between the States – and we focused on Victoria, can we say that that is very much the point, that the Victorian statute, which is in the same textual terms as the Queensland section 184(2) is the same, but it is in relation to adult offending, which the Court accepted could be taken into account even if no conviction is recorded.  In our submission, an inconsistency can arise in those circumstances.  That is, in circumstances

where Victoria does have separate legislation in relation to – no separate legislation, pardon me – in relation to youth offending.

The . . . . . In relation to the submissions about section 184(3), the very fact that that section is necessary, in our submission, does recognise that the facts of the conviction – the facts and the circumstances of the offending must survive – can I use that term – section 184(2), otherwise there would be no work to do for that provision as well as the other provisions which we have pointed to.

Your Honours, that the Queensland Court of Appeal in those decisions that we have referred to are dealing with a different point, in our submission, not to the point.  They do expressly say in those decisions that the terms of those sections – section 12(3) and section 184(2) are in identical terms, and that is contrary to what the Full Court held in terms of the text and in its context.  Thank you, your Honours, may it please the Court.

KEANE J:   Thanks Ms Wheatley.  The Court will adjourn for a few minutes to consider the course it will take in this matter.  Adjourn the Court, please.

AT 2.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KEANE J:   Upon the undertaking of the Minister in relation to costs in paragraph 49 of the application for special leave, special leave is granted.  Ms Wheatley, in relation to the time for the argument, the matter should be concluded in half a day?

MS WHEATLEY:   Yes, we would have thought so, your Honour, thank you.

KEANE J:   Mr Rebetzke, do you have a different view?

MR REBETZKE:   I do not, your Honour.

KEANE J:   Very well, then.  Very well, the special leave is granted on the footing that I have mentioned.  The parties should follow the directions of the Registrar in order to bring the matter to a hearing.  The Court will now adjourn until 9.30 am on Monday 19 September 2022.  Adjourn the Court, please.

AT 2.17 PM THE MATTER WAS CONCLUDED