Can MARA, DHA & AAT consider spent convictions?

High Court: it was not in dispute that 'MARA may not take spent convictions into account in making [decisions under s 290(2) of the Migration Act 1958]', but the question was whether the AAT could; Discussion: are visa applicants really required to disclose convictions for which there was no sentence of imprisonment? Can the Minister take into account a visa applicant's spent conviction? Does the non-disclosure of a spent conviction really trigger PIC 4020?

To avoid doubt, the writer is not expressing an opinion on the conduct of the practitioner involved in this decision nor on any decision maker (administrative or judicial) or anyone else. This article is a mere extract of a decision and should not be interpreted in any other way.

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Court: High Court of Australia

Appellant: RUDY FRUGTNIET

Respondent: ASIC

Judgement (for the appellant): KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON and EDELMAN JJ

Summary and discussion

Although this matter concerned a finding by the ASIC, the joint judgement by Kiefel CJ, Keane and Nettle JJ, which came to the same conclusion of the joint judgement by Bell, Gageler, Gordon and Edelman JJ, used the OMARA and the legislation applicable to its decisions to interpret the law applicable to ASIC.

Subsection 290(2) of the Migration Act 1958 provided as follows (emphasis added):

(2)  In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a)  the extent of the applicant's knowledge of migration procedure; and

(c)  any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

(i)  a fit and proper person to give immigration assistance; or

(ii)  a person of integrity;

(except a conviction that is spent under Part VIIC of the Crimes Act 1914)

According to Kiefel CJ, Keane and Nettle JJ:

6. Section 85ZW of the Crimes Act (which is in Div 3 of Pt VIIC of that Act) provides in substance and so far as is relevant that, subject to Div 6, but despite any other Commonwealth law, or any State law or Territory law, the fact that a person has been charged with or convicted of an offence that is spent shall not be taken into account by a Commonwealth authority.

7. Section 85ZM provides in substance and so far as is relevant that a "conviction" includes a finding of guilt without entry of conviction and that a conviction is a "spent conviction" if the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended. The "waiting period" is defined in s 85ZL, so far as is relevant, as ten years in the case of a person not dealt with as a minor.

8.  Section 85ZZH(c) (which is in Div 6 of Pt VIIC) provides, however, in effect that Div 3 of Pt VIIC does not apply, inter alia, to the taking into account of information by a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing.

Their Honours concluded that s 85ZZH(c) of the Crimes Act ...

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