Thornton distinguishable for “other serious conduct”?

Federal Court. The Full Court held in Thornton that a finding of guilt as a juvenile is effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending. Is Thornton distinguishable if the Tribunal considers juvenile's conduct as “other serious conduct”, instead of as criminal conduct?

The applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the first respondent (Minister) refused to revoke the cancellation under s 501CA(4) of the Act. The applicant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision.

The Tribunal was bound to comply with Ministerial Direction 90, para 8.1.1. of which required the Tribunal to consider the protection of the Australian community from criminal or other serious conduct, particularly the nature and seriousness of the conduct.

The Tribunal said at [35] that the Applicant had “amassed some 13 offences since he appeared before the Magistrates’ Court of Queensland in May 2019. He appeared before the Children’s Court of Queensland on three prior occasions, but the Respondent submitted that, because of the Full Court decision in Thornton, the Tribunal should not have regard to these matters. The Tribunal accepts that submission”.

At [42], the Tribunal said: “The criminal activity of LRMM since becoming an adult has been serious, and his conduct both before and since achieving adulthood has been antisocial and inconsistent with a law-abiding member of the Australian community. The Tribunal notes that the Respondent submitted that while Thornton found that the Tribunal cannot take into account the fact of conviction or the finding of guilt in relation to LRMM’s Court matters as a minor, a distinction may be drawn between crimes and conduct, because the Direction requires ‘other serious conduct’ to be taken into account. The Tribunal agrees with that submission, in terms of making an assessment of the flavour of LRMM’s broad pattern of behaviour, which may have drawn him to the notice of the law enforcement and judicial system. However, proven convictions axiomatically carry much more weight than serious ‘conduct’, so the Tribunal concentrates in its assessment on LRMM’s convictions as an adult.”

The Applicant applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision, arguing, among other things:

Some of the questions to the FCA were as follows:

Question 1: Can it be said that, even though a finding of guilt as a juvenile is, according to the decision of the Full Court of the FCA in Thornton, effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending, it does not extend to expunging the fact of “other conduct to date”?

Question 2: Were the Applicant’s representations were so clearly put that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it?

The FCA answered those questions as follows:

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