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

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia. The dispute concerned the cancellation of Mr Thornton's visa and the Minister's subsequent decision not to revoke that cancellation. Mr Thornton's visa was subject to mandatory cancellation under s 501(3A) of the *Migration Act 1958* (Cth) due to his criminal record. He sought revocation of the cancellation, and in considering this, the Minister took into account offences Mr Thornton committed as a child, for which no conviction was recorded.

The High Court was required to determine whether the Minister's consideration of Mr Thornton's offences committed as a child, for which no conviction was recorded, constituted an irrelevant consideration. This question hinged on the interpretation of s 184(2) of the *Youth Justice Act 1992* (Qld) and s 85ZR(2)(b) of the *Crimes Act 1914* (Cth). Specifically, the Court had to decide if s 184(2) of the *Youth Justice Act* was a State law that provided for a person to be taken never to have been convicted of an offence under the law of that State, and if so, whether this rendered the Minister's consideration of those offences a jurisdictional error.

The Court reasoned that s 184(2) of the *Youth Justice Act* operates to ensure that a finding of guilt without a recorded conviction is not taken to be a conviction for any purpose under Queensland law. Consequently, s 85ZR(2)(b) of the *Crimes Act* mandates that Commonwealth authorities must treat such a person as never having been convicted of that offence in corresponding circumstances or for corresponding purposes. The Minister conceded that if s 85ZR(2)(b) applied in this manner, then considering Mr Thornton's juvenile offending would be taking into account an irrelevant consideration. The Court found that the Full Court of the Federal Court was correct in concluding that s 184(2) of the *Youth Justice Act* meant Mr Thornton was to be taken as never having been convicted of the offences committed as a child. This led to the conclusion that the Minister had taken into account an irrelevant consideration, which constituted a material jurisdictional error that vitiated the decision not to revoke the visa cancellation.

The appeal was dismissed, and the Minister was ordered to pay Mr Thornton's costs of the appeal.