Immigration – cancellation of visa

High Court casenotes

In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (14 June 2023), the appeal turned on the construction of s85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act), and the characterisation of s184(2) of the Youth Justice Act 1992 (Qld) (Youth Justice Act).

The respondent (Thornton) was born in, and is the citizen of, the United Kingdom. Thornton came to Australia at three years of age and held a ‘Class BB Subclass 155 Five Year Resident Return Visa’.

When he was 21 years old, he was convicted of various offences and sentenced to 24 months’ imprisonment. As a result, his visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (Migration Act).

Thornton made representations to the Minister for the revocation of his visa cancellation. In support of his representations, he included information that referred to offences he committed as a child.

The Minister considered that Thornton represented an unacceptable risk to the Australian community, and decided not to revoke Thornton’s visa cancellation. In reaching this decision, the Minister noted that Thornton had begun offending as a minor.

Thornton sought to have the Minister’s decision quashed on the basis that the Minister should not have taken the offences he committed as a child into account. Thornton argued that s184(2) of the Youth Justice Act and s85ZR(2)(b) of the Crimes Act made those offences irrelevant considerations.


Thornton failed at first instance but was successful on appeal to the Full Court of the Federal Court. The Minister’s subsequent appeal to the High Court was dismissed by a majority (Steward J dissenting).

Gageler and Jagot JJ (at [13]) and Gordon and Edelman J (at [61]) considered that s85ZR(2) of the Crimes Act, properly construed, provided that if the State law is that a person is – in certain circumstances or for a certain purpose – to be taken never to be convicted of an offence, the person shall similarly be taken by a Commonwealth authority never to have been convicted of an offence.

Gageler and Jagot JJ (at [23]) and Gordon and Edelman JJ (at [63]) observed that the Youth Justice Act provided a comprehensive code for dealing with children accused of offences. Their Honours went on to observe that the effect of s184(2) of the Youth Justice Act (where the court has not recorded a conviction) is that the finding of guilt is expunged from the criminal history of the person – as a pardon might do.

Gageler and Jagot JJ (at [36]) and Gordon and Edelman J (at [73]-[74]) concluded that s85ZS(1)(d)(ii) of the Crimes Act engaged with s184(2) of the Youth Justice Act – such that the Minister could not take into account, under s501CA(4) of the Migration Act, any findings of guilt made against Thornton when he was a child.

Gageler and Jagot JJ (at [37]-[38]) and Gordon and Edelman J (at [78]-[80]) held that the Minister’s error – in taking into account irrelevant findings of guilt – was material to the Minister’s decision and, as such, a jurisdictional error.

Steward J, in dissent, allowed the Minister’s appeal after his Honour construed s85ZR(2) of the Crimes Act narrowly to the pardoning of an offender wrongly convicted; further, observing that Thornton had not, in fact, been pardoned. Steward J also noted that it was open to Federal Parliament to amend the Crimes Act, to take account of juvenile offending in the way provided for in the Youth Justice Act.


Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email The full version of these judgments can be found at

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