the blog of Sentry Law

Removed does not mean ‘lawfully removed’: unlawful government actions still have significant legal consequences for non-citizens

Joel McComber
joel@sentrylaw.com.au
10 February 2020

A recent decision by Judge Vasta of the Federal Circuit Court of Australia indicates that the consequences of removal for a non-citizen are the same whether or not the removal was lawful.

In the decision, which was delivered ex tempore on 8 March 2019, Judge Vasta found that a New Zealand citizen fell within the definition of behaviour concern non-citizen solely because the Minister had previously purported to remove the non-citizen from Australia, notwithstanding that the Minister admitted that the purported removal was not authorised by law.

Factual Background

The applicant had previously lived in Australia for about five years between 2012 and 2017. During that time the applicant developed substance misuse secondary to postnatal depression and was convicted of some drug-related offences (although was never sentenced to serve any time of actual imprisonment).

In December 2017 the applicant returned to New Zealand temporarily to visit family. On her return to Australia on 2 January 2018 she was granted a Special Category (subclass 444) visa, but that visa was swiftly purported to be cancelled under s 116(1)(e) of the Migration Act 1958 while she remained in immigration clearance during the early hours of 3 January 2018.

The Minister purported to remove the Applicant from Australia on 4 January 2018 on an expedited basis (as she had been refused immigration clearance at the airport). The applicant subsequently applied for judicial review of the cancellation decision and on 26 June 2018 Judge Vasta issued orders (by consent) quashing the decision dated 3 January 2018 cancelling the applicant’s visa.

The applicant subsequently wrote to the Australian Consulate in Auckland seeking clarity about her eligibility to be granted a Special Category (subclass 444) visa in the future, but did not receive a response.

On 29 January 2019 the applicant traveled to Australia to take up an employment opportunity. On her arrival in Australia her application for a subclass 444 visa was refused on the basis that she had previously been removed from Australia and was therefore a behaviour concern non-citizen. The applicant was therefore refused immigration clearance and taken into immigration detention pending he removal from Australia the following morning (30 January 2019).

On the afternoon of 29 January 2019 the applicant filed an application for judicial review of the refusal decision which included an application for an urgent interlocutory injunction restraining the Minister from removing the applicant from Australia pending resolution of her removal from Australia. On the evening of 29 January 2019 the Minister agreed not to remove the applicant from Australia pending determination of her application for review. She was subsequently held in immigration detention until her matter was heard on 8 March 2019.

Relevant Legislation

The relevant criteria for a Special Category (subclass 444) visa are set out in s 32(2)(a) of the Migration Act 1958, which prescribe that the criterion for a special category visa is that the Minister is satisfied that the applicant is:

  1. who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

  2. is neither a behaviour concern non-citizen nor a health concern non-citizen.

The definition of ‘behaviour concern non-citizen’ is set out in s 5 of the Migration Act 1958, which provides that a non-citizen who ‘has been removed or deported from Australia or removed or deported from another country’ is a behaviour concern non-citizen.’

Issue for the Court

The sole issue for the Court to determine was whether the applicant was ‘removed’ from Australia on 4 January 2018 and therefore fell within the definition of ‘behaviour concern non-citizen.’

While that might at first seem like a straightforward question—the Minister did after all put the applicant on a plane leaving Australia on 4 January 2018—it was not.

Effect of order quashing cancellation

When a Court sets aside an administrative decision due to jurisdictional error the decision is taken never to have been made. This is because the jurisdictional error made by the decision maker meant that they never exercise the power that they purported to exercise (in this case, the power to cancel the applicant’s visa).

Therefore, the effect of the Court’s order quashing decision dated 3 January 2018 to cancel the Applicant’s visa was that the Applicant’s visa was not cancelled on 3 January 2018 and she continued to hold her SCV until she departed Australia on 4 January 2018 (this is because all SCVs cease as soon as its holder leaves Australia—usually the visa holder would be granted a new SCV on their next entry to Australia).

However, if the applicant held a valid visa up until the time she left Australia on 4 January 2018, that meant that she was a lawful non-citizen at the time the Minister purported to remove her from Australia. That is problematic because the Migration Act 1958 only authorises the removal of unlawful non-citizens from Australia. The Minister has no power to remove a lawful non-citizen from Australia.

The Minister’s purported removal of the applicant on 4 January 2018 was therefore not authorised by law (that is, it was unlawful).

The applicant contended that she could not have been ‘removed from Australia’ on 4 January 2018 because the Minister did not in fact have the power to remove her at that time.

The Minister argued that whether or not the Applicant’s removal was authorised by law, she was nevertheless, as a matter of fact, removed from Australia on 4 January 2018.

The applicant raised some difficulties with the Minister’s approach, which are summarised in detail here, but Judge Vasta agreed with the Minister and found that the legal consequences attached to ‘removal’ attach to the act of ‘removal’ and not the lawfulness of that removal.

What does this mean?

Being removed from Australia has some very serious consequences, and not just for New Zealand citizens.

Previously being removed from Australia (or any other country) automatically precludes a New Zealand citizen from being granted a Special Category (subclass 444) Visa at any time in the future.

However, many visas (including most that can be applied for offshore) include Special Return Criteria 5002 (SRC 5002) as a criteria for grant of the visa. SRC 5002 effectively provides that a person previously removed from Australia is not eligible to apply for the visa within 12 months of that removal.

Further, Public Interest Criteria 4014 (PIC 4014), which is a criteria of many temporary visas (including most that can be applied for offshore) effectively prevents a person previously removed from Australia from applying for the visa within 3 years of their removal.

Having regard to the commonality of the language between the definition of ‘behaviour concern non-citizen’ in s 5 of the Migration Act 1958 and the language used in SRC 5002 and PIC 4014, it is relatively clear that even if the Minister (or the Department) accepts that a removal was not authorised by law (i.e. was unlawful), the non-citizen will still be subject to SRC 5002 and PIC 4014.

Does this provide a significant basis for injunctive relief?

Judge Vasta’s decision on 8 March 2019 raises an issue of general importance for judicial review applicants who face the prospect of being removed (non-voluntarily) from Australia under s 198 of the Migration Act.

Simply put, if you are removed from Australia prior to the determination of your application for judicial review, a successful outcome in your application for review may be of no practical benefit to you. This is especially true in the circumstances of:

  1. New Zealand citizens;

  2. non-citizens whose last substantive visa would have expired prior to the determination of the Court;

  3. non-citizens whose existing visa does not authorize any further entries to Australia (even if that visa is still in effect).

Those people would stand to suffer significant prejudice if they were removed from Australia prior to the Court’s determination of their applications for judicial review because, even if they are successful in their applications, their removal would significantly limit their ability to re-enter Australia (whereas, if they were not removed, they would not suffer that detriment).

While it is yet to be tested, that prejudice may be significant in a Court’s determination of whether to grant interlocutory relief restraining the Minister from removing an applicant pending the determination of their application for review.

Some caveats

it is important to keep in mind some significant issues that touch on the longer-term legal effects of removal.

There is a notable exception to the general rule that New Zealand citizens cannot be granted an SCV if they have previously been removed from Australia. That exception is that if:

  1. your visa was mandatorily cancelled under s 501(3A) of the Act; and

  2. you are subsequently removed to New Zealand; and,

  3. the mandatory cancellation of your visa is revoked (by either the Mininster, a delegate or the AAT),

you are eligible to be granted an SCV on your next entry to Australia notwithstanding that you have previously been removed from Australia.

Another issue is that, in situations where adverse decisions are made in immigration clearance (i.e. on arrival at the airport), the Department has a policy of effecting removal under s 198(2) of the Act as quickly as possible (often within 1 to 2 days, as in the case of the applicant in the above-described case). Unless an applicant is able to file an application for judicial review (including an application for urgent interlocutory relief) within hours of being refused immigration clearance (a very difficult thing to do), the non-citizen will be practically unable to protect their interests (even if, after their removal from Australia, they apply to the Court and obtain orders quashing the adverse decision).

The other significant point is that the effects of an order of a Court quashing a decision for jurisdictional error are completely different to the Administrative Appeals Tribunal setting aside a decision and substituting a decision more favourable to the applicant.

When a Court makes an order quashing a decision for jurisdictional error, that decision is taken never to have been made. That means, in the case of a visa cancellation decision, your visa is taken to never have been cancelled. However, when the Tribunal makes a decision setting aside a decision (i.e. a decision to cancel) and substitute a new decision (i.e. not to cancel), the initial cancellation decision is taken to have force and effect until the Tribunal makes it’s decision. That is to say, a favourable decision by the AAT does not render your presence in Australia in the time between the initial cancellation and the AAT’s decision lawful.

Conclusion

This situation is probably best solved by Parliament including a further exception of the kind made for those who successfully request revocation of mandatory visa cancellation decisions.

Parliament could add a subsection to s 5.15A of the Regulations to the following effect:

A non-citizen is eligible to be granted a Special Category Visa if:

  1. the non-citizen is only ineligible to be granted a Special Category Visa because they are a behaviour concern non-citizen solely as a result of having been removed or deported from Australia; and

  2. a Court has made a declaration that the removal of the non-citizen from Australia was not authorised by law.

In the meantime, it is probably a good idea for applicants for judicial review (who aren’t otherwise protected) to apply for injunctions restraining their impending removal from Australia on the basis that the detriment caused by their removal from Australia cannot be remedied by an order of the Court.

As this case shows, this area of the law is complex and, often, not intuitive. If you’re facing a complex migration situation (including a visa cancellation or refusal, or removal) we encourage you to contact Sentry Law to obtain advice.

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