Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

HIGH COURT OF AUSTRALIA

GAGELER, GORDON, EDELMAN, STEWARD AND JAGOT JJ

MINISTER FOR IMMIGRATION, CITIZENSHIP,

MIGRANT SERVICES AND MULTICULTURAL

AFFAIRS APPELLANT

AND

ROSS THORNTON RESPONDENT

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

[2023] HCA 17

Date of Hearing: 8 March 2023

Date of Judgment: 14 June 2023

B42/2022

ORDER

1. Appeal dismissed.

2. The appellant pay the respondent's costs of the appeal.

On appeal from the Federal Court of Australia

Representation

A L Wheatley KC with A G Psaltis for the appellant (instructed by Clayton Utz)

S J Keim SC with G J Rebetzke for the respondent (instructed by GTC Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Immigration – Visas – Cancellation of visa – Where respondent's visa subject to mandatory cancellation under s 501(3A) of Migration Act 1958 (Cth) – Where Minister decided not to revoke visa cancellation on basis that respondent represented unacceptable risk of harm to Australian community – Where Minister took into account respondent's offending as a child for which no conviction recorded – Where s 184(2) of Youth Justice Act 1992 (Qld) provided that finding of guilt without recording of conviction not taken to be conviction for any purpose – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under State law, a person is, in particular circumstances or for particular purpose, taken never to have been convicted of offence under law of that State, the person shall be taken, in any State, in corresponding circumstances or for corresponding purpose, by any Commonwealth authority in that State, never to have been convicted of that offence – Whether s 184(2) of Youth Justice Act a State law which provided that person to be taken never to have been convicted of offence under law of that State – Whether Minister took into account irrelevant consideration – Whether Minister's decision vitiated by jurisdictional error.