NACE of 2002 v MIMIA

The High Court of Australia considered an appeal by NACE of 2002 (NACE) against a decision of the Full Federal Court, which had affirmed a judgment of a single judge of that court. The dispute concerned the interpretation of certain provisions within the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) relating to the cancellation of a visa held by a non-citizen. The Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) had cancelled NACE's visa.

The central legal issue before the High Court was whether the Minister's delegate had the power to cancel NACE's visa under section 501(2) of the *Migration Act* when NACE had not been convicted of a criminal offence, but rather had been found guilty of an offence and placed on a diversionary program. The court was required to determine the meaning of "convicted of an offence" in the context of section 501(2) and whether a finding of guilt followed by a diversionary program constituted a conviction for the purposes of that section.

The High Court, comprising Gleeson CJ and Heydon J, held that a conviction for the purposes of section 501(2) of the *Migration Act* requires a formal conviction and sentencing by a court. A finding of guilt followed by a diversionary program, which does not result in a conviction being recorded, does not satisfy the requirement of being "convicted of an offence" under that section. The court reasoned that the plain meaning of "convicted" in a criminal context implies a formal judgment of guilt and the imposition of a penalty or sentence. Therefore, the delegate lacked the power to cancel NACE's visa on the grounds relied upon.

The High Court allowed the appeal, set aside the orders of the Full Federal Court, and remitted the matter to the Federal Court for further consideration.