Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/21

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Beech-Jones J

17.

some other provision of State law specifically provides to that effect. That is sufficient to engage s 85ZR(2).

Under the Youth Justice Act considered in Thornton, a finding of guilt made against a child could not be used in any subsequent proceedings against them as an adult for an offence[1] and could not form part of the criminal history of any adult.[2] Although those restrictions on the use of a finding of guilt were wider than those imposed by s 15 of the Children Proceedings Act, they did not preclude a finding of guilt being used for a purpose, or in a circumstance, analogous to a consideration of whether to cancel a visa. Even so, that did not inhibit the majority judgments in Thornton from concluding that the Minister was precluded from taking into account the respondent's "youth offending"[3] and the "finding[s] of guilt".[4]

Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending"[5] and "finding[s] of guilt"[6] that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.

Jurisdictional error, materiality and relief

It was not disputed by the Minister that, if it was accepted that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act precluded the delegate from considering the plaintiff's "convictions" for which he was sentenced by the Children's Court when he was under the age of 16 years, then the delegate's decision was affected by

  1. ↑ Youth Justice Act, s 148(1)
  2. ↑ Youth Justice Act, s 154(1); Thornton (2023) 97 ALJR 488 at 502–503 [72] per Gordon and Edelman JJ; 409 ALR 234 at 251.
  3. ↑ Thornton (2023) 97 ALJR 488 at 497 [36] per Gageler and Jagot JJ; 409 ALR 234 at 243.
  4. ↑ Thornton (2023) 97 ALJR 488 at 503 [73] per Gordon and Edelman JJ; 409 ALR 234 at 252.
  5. ↑ Thornton (2023) 97 ALJR 488 at 497 [36] per Gageler and Jagot JJ; 409 ALR 234 at 243.
  6. ↑ Thornton (2023) 97 ALJR 488 at 503 [73] per Gordon and Edelman JJ; 409 ALR 234 at 252.
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