High Court. Was the Respondent's finding of guilt as a child made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?
As per Gageler and Jagot JJ, in making a decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Respondent's visa, "the Minister said that he was satisfied that [the Respondent] represented an unacceptable risk of harm to the Australian community which outweighed all other relevant considerations in favour of revocation. Before reaching this conclusion, the Minister had noted that [the Respondent] had begun "offending as a minor and had a number of offences recorded before reaching adulthood" and "has a history of mainly drug-related and violent offences since he was 16 years old".
At the relevant time, s 85ZR(2) of the Crimes Act 1914 (Cth) provided:
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:
(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b) 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.
At the relevant time, s 184(2) of the Youth Justice Act 1992 (Qld) provided: "Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose."
Some of the questions to the High Court (HCA) were as follows:
Question 1: Was the Respondent's finding of guilt made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?
Question 2: According to Gageler and Jagot JJ: The Minister decided that there was not another reason to revoke the cancellation because [the Respondent] represented an unacceptable risk to the Australian community, and the protection of the Australian community outweighed the considerations in favour of revocation of the cancellation. The risk [the Respondent] represented to the Australian community arose from his offending, including violent offending. It is obvious that in weighing that risk the Minister took into account [the Respondent's] history of offending, including as a child." If the answer to Question 1 is 'yes', then in assessing materiality, was there "no reason for the Minister to refer to that offending other than to bolster the conclusion that [the Respondent] represented an unacceptable risk to the Australian community"?
The HCA answered those questions as follows: