In order to fall within the definition of a "behaviour concern non-citizen" as stated in s 5(1)(d) Migration Act, 1958 (Cth), "removed ... from Australia" must be construed to mean removed in fact and not removed in accordance with the Act.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft  HCA 19 (16 June 2021)
This appeal from a judgment of the Federal Court of Australia concerns the refusal of the respondent's application for a special category visa on 29 January 2019, on the basis that she failed to satisfy the criterion for the visa in s 32(2) of the Migration Act 1958 (Cth) ("the Act") because she was a "behaviour concern non-citizen" within the meaning of s 5(1) of the Act. The visa was refused because the respondent was found to have fallen within para (d) of the definition of "behaviour concern non-citizen", which refers to a non-citizen who "has been removed or deported from Australia or removed or deported from another country"
The issue in the appeal is the proper construction of para (d) of the definition of "behaviour concern non-citizen". The question is whether "removed ... from Australia" in para (d) refers to an administrative act of removal otherwise authorised by the Act subject to certain constraints, or only such an administrative act performed in accordance with those constraints. The appellant ("the Minister") contended that the expression "removed ... from Australia" means taken out of the country in fact. The respondent's primary contention was that a non-citizen will not have been removed from Australia within the meaning of para (d) unless that removal was effected in accordance with Div 8 of Pt 2 of the Act. By notice of contention, the respondent argued in the alternative that the word "lawfully" or the word "validly" is implied into para (d) so that a person will not have been removed from Australia within the meaning of para (d) unless their removal was effected lawfully or validly.
The respondent is a citizen of New Zealand, who previously resided in Australia as the holder of a special category visa. A special category visa is a temporary visa which allows the visa holder to remain in Australia and to work in Australia while the holder remains a New Zealand citizen.
While living in Australia, the respondent committed criminal offences and was sentenced to a term of imprisonment, but was not required to serve prison time. On 24 December 2017, she left Australia and travelled to New Zealand. By virtue of s 82(8) of the Act, the respondent's visa ceased to be in effect on her departure from Australia.
On 2 January 2018, the respondent returned to Australia and, upon presenting her New Zealand passport, was automatically granted a further special category visa. On 3 January 2018, the visa granted to the respondent the previous day was purportedly cancelled pursuant to s 116(1)(e) of the Act ("the purported cancellation decision"). The respondent was held in immigration detention until early on the morning of 4 January 2018, when she was taken to Brisbane airport and required to depart Australia. The Minister observed that, even though the validity of the visa granted on 2 January 2018 was not affected by the purported cancellation decision, it ceased to be in effect on her removal from Australia, again by virtue of s 82(8) of the Act.
On 28 June 2018, a judge of the Federal Circuit Court of Australia made an order by consent that a writ of certiorari issue directed to the Minister, quashing the purported cancellation decision ("the quashing order"). The Minister accepted that the effect of the quashing order was that the purported cancellation of the respondent's visa was "retrospectively nullified", her visa did not cease to be in effect on 3 January 2018 and the respondent was not an unlawful non-citizen on 4 January 2018 when she left Australia. The Minister also accepted that there was no power to remove the respondent on 4 January 2018.
On 29 January 2019, the respondent returned to Australia. As her previous visa had ceased to be in effect, she was required to apply for a new visa. On arrival in Australia, the respondent was informed that her application for a new special category visa, made earlier that day, had been refused.
The respondent applied to the Federal Circuit Court for judicial review of the decision to refuse her a special category visa. At first instance, Judge Vasta dismissed her application, finding that the respondent was removed from Australia on 4 January 2018 and that the fact of her removal meant that she was a "behaviour concern non-citizen" within para (d) of the definition of that expression.
The respondent appealed to the Federal Court, where Collier J allowed the appeal. Her Honour accepted that "it would be wrong to contort the language of the statute to give it the effect urged on me by the [respondent], and imply the words 'lawfully' or 'validly' into" para (d) of the definition of "behaviour concern non-citizen". Even so, her Honour effectively did what she considered would be wrong, implying words into para (d) by concluding that the meaning of "removed" in para (d) meant removed under Div 8 of Pt 2 of the Act.
The appeal judge also concluded that it was incumbent on the Minister's delegate, in considering the respondent's visa application in January 2019, to be satisfied, as a matter of public record, that the respondent had been either deported under Div 9 of Pt 2 or removed under Div 8 of Pt 2 of the Act before finding that she had been "removed or deported from Australia" for the purposes of para (d).
On proper construction, does "removed ... from Australia" in Section 5(1)(d) of the Act refer to a non-citizen who is removed in fact or removed in accordance with the Act?
Proper approach to the constructional question
Paragraph (d) of the definition of "behaviour concern non-citizen" is to be interpreted by considering the text, having regard to its context and purpose. Contrary to the respondent's submission that the Court need not determine the construction of the phrase "removed ... from another country" in para (d), the proper construction of the words "removed ... from Australia" requires consideration of the meaning of para (d) in its entirety, including whether the proper construction of para (d) is consistent with the language and purpose of the whole of the Act.
On its face, para (d) refers to non-citizens who have been removed or deported, as a matter of fact and without more, from Australia or another country. An interpretation in accordance with the ordinary literal meaning of the text is supported by a consideration of the other limbs of the definition of "behaviour concern non-citizen". Each limb of the definition refers to governmental acts: paras (a) to (c) are concerned with judicial acts (conviction, sentences to death or imprisonment, findings of guilt and acquittal), while paras (d) and (e) are concerned with executive acts. Contrary to what might have been suggested by the appeal judge, in context it would be anomalous if the expression "removed or deported" encompassed the acts of private citizens. As the Minister submitted, the governmental acts specified in the definition of "behaviour concern non-citizen" are apparently convenient proxies for identifying individuals of "concern" by reason of their past behaviour. The definition "is in precise terms which do not allow for any evaluative judgments. It is applied by reference to matters essentially of public record."
In this case, there was a public record of the quashing order, but that order did not change the historical fact that the respondent was removed from Australia, which is a separate event from the event of the purported cancellation decision. The respondent did not dispute that the remedy of certiorari was not available to quash the act of her removal from Australia.
The terms of the definition of "behaviour concern non-citizen" as a whole facilitate what Parliament should be taken to understand would, at least typically, be speedy decision-making by delegates of the Minister at ports, as is reinforced by the terms of s 32(2)(a)(i) of the Act. In this regard, the Minister noted the provisions by which a special category visa will typically be granted or refused to a person in immigration clearance. Immigration clearance is addressed in Div 5 of Pt 2 of the Act. The relevant provisions of that Division do not contemplate that a visa applicant will spend an extended period of time in immigration clearance. The interpretation of "removed ... from Australia" as removed from Australia in fact promotes the statutory purpose of fast and simple decision-making about whether to grant or refuse to grant special category visas.
Conversely, as earlier noted, to decide whether a person has been removed from Australia or another country in accordance with any relevant legal constraints upon removal may involve the delegate engaging in a complex and time-consuming evaluative assessment as to the circumstances of the person's removal and, in the case of removal from another country, the application of foreign laws to those circumstances. As the Minister submitted, delegates are likely to be ill-equipped to perform such a task at immigration clearance and it is not readily to be supposed that this was Parliament's intention.
The appeal should be allowed.