Paul Cutler's Migration Case Law Blog

Was it an irrelevant consideration to take into account juvenile offending when deciding to revoke a character cancellation decision? In Minister v Thornton [2023] HCA 17, a majority of the High Court found that it was.

Mr Thornton came to Australia from the UK as a 3 year old. By the time he had turned 16, he had been found guilty of a number of offences (including assault/obstruct police officer) in the QLD Children’s Court. His bad behaviour (more assaults) continued after he turned 18 and inevitably his visa was cancelled.

The issue which took the matter to the High Court was the intersection of the Youth Justice Act 1992 (QLD), the Crimes Act and s501CA of the Migration Act. Under the Youth Justice Act, Mr Thornton was taken to have never been convicted of an offence as a child under QLD law.

It was clear that in assessing whether he was an unacceptable risk to the community, the Minister had taken the childhood offending into account.

One interesting feature of this case, is that it appears that the issue of childhood offending was raised by Mr Thornton. Gordon and Edelman JJ (at [47]) noted that the Minister was required to consider Mr Thornton’s representations (which included reference to childhood offending). However, that didn’t prevent it being an irrelevant consideration which resulted in an error of reasoning.

Gageler and Jagot JJ (at [37]) found that considering the childhood offending was both impermissible and material in the sense that the decision might have been different if it hadn’t been considered.

Steward J’s dissent was based primarily on a different construction of the Crimes Act. However, his Honour also referred to Viane as authority for the proposition that there may be few mandatorily irrelevant matters that the Minister must not consider.

Creative commons acknowledgment for the photograph.