Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, GLEESON AND BEECH‑JONES JJ

ISAAC LESIANAWAI PLAINTIFF

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP

AND MULTICULTURAL AFFAIRS DEFENDANT

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCA 6

Date of Hearing: 16 November 2023

Date of Judgment: 6 March 2024

S12/2023

ORDER

1. A writ of certiorari issue quashing the decision of the delegate of the defendant made on 9 October 2013 to cancel the plaintiff's Class BF 154 Transitional (Permanent) visa.

2. The defendant pay the plaintiff's costs.

Representation

D J Hooke SC with J D Donnelly for the plaintiff (instructed by Zarifi Lawyers)

P M Knowles SC with B D Kaplan for the defendant (instructed by Sparke Helmore)

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

CATCHWORDS

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs

Immigration – Visas – Cancellation of visa – Where plaintiff found guilty of robbery offences when under 16 years of age before Children's Court of New South Wales – Where plaintiff committed subsequent robbery offences as adult – Where plaintiff's visa cancelled under s 501(2) of Migration Act 1958 (Cth) – Where delegate of Minister took into account "National Police Certificate" that listed robbery offences committed by plaintiff when under 16 years of age – Where "National Police Certificate" described plaintiff as being "convicted" of offences dealt with by Children's Court – Where delegate advised that plaintiff had "serious convictions" from 13 years of age – Where, at time of offending, s 14(1)(a) of Children (Criminal Proceedings) Act 1987 (NSW) prohibited Children's Court from proceeding to, or recording, any conviction if child was under 16 years of age – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence – Whether delegate erroneously took into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age – Whether delegate's decision affected by jurisdictional error.