Federal Court. In circumstances where the non-citizen was convicted in Victoria, did the Tribunal err by applying Thornton and Lesianawai without giving any consideration to the question of whether there was any Victorian law that attracted the operation of s 85ZR(2) of the Crimes Act 1914 (Cth)?
The High Court's decisions in Thornton and Lesianawai concerned the application of s 85ZR(2) of the Crimes Act 1914 (Cth), which provided:
(2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:
…
(c) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.
The Federal Court (FCA) here said:
23 In both Thornton and Lesianawai, the High Court considered whether the State laws in issue attracted the operation of s 85ZR(2), that is, whether they had the effect that the offender was to be taken never to have been convicted of the offence for which they were found guilty. In Thornton, the relevant State law was s 184(1) of Youth Justice Act 1992 (Qld) which provided that “a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose”. In Lesianawai, the relevant State law was s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibited the Children’s Court of New South Wales from recording a conviction in relation to a child under the age of 16 years.
Here, the Tribunal had said:
34. In the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) prohibited an administrative decision maker from taking a finding of guilt into account in circumstances where no conviction was recorded for the offence because of the operation of s 184(2) of the Youth Justice Act (Qld).
35. In Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs it was held that s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), ('Children Proceedings Act') in its terms and effect, was sufficient to engage s 85ZR(2) of the Crimes Act 1914 (Cth) and as such the Applicant was taken to have never been convicted of the offences dealt with by the Children's Court. The provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and aconviction. Beech-Jones J held that under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose.
36. Accordingly, the Tribunal has not placed any weight on the Children's Court offences for the purpose of this decision.
Some of the questions to FCA were as follows:
Question 1: As the Tribunal was induced by the Minister to make an error when reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), was the error made within jurisdiction, meaning that it was not a jurisdictional error?
Question 2: In circumstances where the First Respondent's (non-citizen) was convicted in Victoria, did the Tribunal err by applying Thornton and Lesianawai without giving any consideration to the question of whether there was any Victorian law that attracted the operation of s 85ZR(2) of the Crimes Act?
The FCA answered those questions as follows: