Case Summary: Whether Criminal Convictions Under 16 Years Can Be Taken into Account for Section 501(2) Visa Cancellation Decisions?
Lesianawai v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 6
Background
The plaintiff, born in Fiji, arrived in Australia as a child and was granted permanent residency. He had a history of criminal offences dating back to his youth, including convictions for robbery and related offences.
The delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs cancelled the plaintiff's visa in 2013 due to his criminal record.
Outcome
The High Court of Australia ruled in favour of the plaintiff, granting relief in the form of a writ of certiorari to quash the delegate's decision to cancel his visa, which is a similar case to our team assisted in 2019. The Minister was directed to cover the plaintiff's legal costs.
Key Takeaways
Under Section 501 of the Migration Act, the Department of Home Affairs must automatically cancel a person’s visa if the visa holder has a ‘substantial criminal record’. This includes a visa holder who is:
currently serving a full-time prison sentence and;
has been sentenced to 12 months or more imprisonment. This includes time already served or
has been sentenced to life imprisonment or
has been sentenced to death or
has been found guilty of a sexual crime involving a child.
The current case centres around whether offences committed as a juvenile by the plaintiff should have been considered for visa cancellation purposes.
In this case, the delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs cancelled the plaintiff’s visa under section 501(2) of the Migration Act. The delegate's decision was based on the plaintiff's criminal record, including offences committed as a juvenile in New South Wales. However, the plaintiff argued that these offences, for which he was sentenced by the Children's Court when under 16, should not have been considered due to the provisions of the Crimes Act 1914 (Cth).
Sections 85ZR and 85ZS of the Crimes Act were central to the argument. These sections preclude consideration of offences for which a person is not convicted under state law. The plaintiff contended that under the Children Proceedings Act 1987 (NSW), he was not considered convicted for the purposes of federal law.
The High Court examined the relevant provisions of the Children Proceedings Act and compared them with the Youth Justice Act provisions analysed in a previous case, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17. It was found that the plaintiff's circumstances aligned with those in Thornton, where the court held that certain youth offences could not be considered for visa cancellation purposes.
The High Court concluded that the delegate's decision was affected by jurisdictional error, as the delegate improperly considered offences that were not convictions under state law. As a result, the court granted a writ of certiorari, quashing the delegate's decision to cancel the plaintiff's visa. The Minister was ordered to pay the plaintiff's costs.
How Can Agape Henry Crux Help
If you have been charged with a criminal offence(s) and possibly facing visa cancellation, it is crucial you speak to an immigration lawyer as soon as possible. At Agape Henry Crux, our Accredited Specialist Immigration Lawyer(s) and our team of immigration lawyers and migration agents are specialised in handling highly complex matters. You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. If this isn’t your language, we can also help you arrange an interpreter.
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