Paramasivam v Flynn

In *Paramasivam v Flynn*, the High Court of Australia considered an appeal concerning the interpretation of section 118 of the *Migration Act 1958* (Cth) and its application to a non-citizen who had been convicted of a serious Commonwealth offence. The dispute centred on whether the appellant, Mr Paramasivam, was a person to whom a visa must be granted under that section, notwithstanding his criminal conviction.

The primary legal issue before the High Court was whether the appellant, having been convicted of a serious Commonwealth offence, was nevertheless a person to whom a visa *must* be granted under section 118 of the *Migration Act*. This required the Court to determine the scope and effect of section 118, particularly in circumstances where a non-citizen has committed a serious offence, and whether the mandatory grant of a visa under that provision could be overridden by other considerations or provisions within the Act.

McHugh and Hayne JJ held that section 118 of the *Migration Act* mandates the grant of a visa to a non-citizen who satisfies its conditions, irrespective of any criminal convictions. Their Honours reasoned that the language of section 118 is clear and unambiguous, creating a positive obligation on the Minister to grant a visa. They found that the section does not permit the Minister to refuse a visa on grounds other than those specified within section 118 itself, nor does it allow for the exercise of discretion to refuse a visa based on the applicant's criminal history. The Court emphasised that if Parliament intended to allow for refusal in such circumstances, it would have expressly provided for it.

The High Court allowed the appeal, finding that the appellant was entitled to a visa under section 118 of the *Migration Act*. The Court ordered that the decision of the Federal Court be set aside and that the appellant be granted a visa.