the blog of Sentry Law

‘Removed’ does not mean ‘removed’ after all: Moorcroft v Minister for Immigration… [2020] FCA 382

Joel McComber
25 March 2020

Read the decision: Moorcroft v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 382

Please note, as at the time of posting, the decision discussed in this post is currently within the period for appeal to the Full Court of the Federal Court of Australia.

I’ve written about the Federal Circuit Court of Australia’ decision in Moorcroft v Minister for Home Affairs [2019] FCCA 772 and its consequences (see here and here).

On Monday this week, the Federal Court of Australia handed down a decision allowing our client’s appeal of the FCCA’s and, today, we were notified that our client has been granted a Special Category (subclass 444) Visa, ending an over two-year ordeal for our client (who ended up spending over six months in immigration detention as a result). Below is the evidence (if you don’t believe us). 

Factual background

This case has a complex factual history, so bear with me while I try to set the scene:

  1. our client is a New Zealand citizen who resided in Australia from November 2013;
  2. on 24 December 2017 she temporarily departed Australia with the intention of returning on 2 January 2018;
  3. our client returned to Australia on the evening of 2 January 2018 and was granted a Special Category (subclass 444) Visa;
  4. however, while she remained in immigration clearance, our client’s visa was purportedly cancelled under s 116(1)(e) of the Migration Act 1958 in the early hours of 3 January 2018;
  5. our client was taken into immigration detention and subsequently removed from Australia under s 198(2) of the Act on 4 January 2018;
  6. our client applied to the Federal Circuit Court for judicial review of the visa cancellation decision (she was not entitled to apply to the Administrative Appeals Tribunal as the decision was made while she was in immigration clearance);
  7. on 28 June 2018, the Federal Circuit Court made orders by consent quashing the visa cancellation decision dated 3 January 2018;
  8. on 29 January 2019 our client attempted to return to Australia;
  9. on her arrival in Australia, she was refused the grant of a Special Category (subclass 444) Visa on the basis that she was a ‘behaviour concern non-citizen’ due to her previous ‘removal’ from Australia on 4 January 2018 (this was despite the relevant officer being provided with this letter written in anticipation of such an issue being raised);
  10. on 29 January 2019 our client filed an application in the Federal Circuit Court for review of the visa refusal decision and also seeking urgent interlocutory orders restraining the Minister from removing her from Australia while her application was being determined (the decision-maker indicated that our client would be removed on 30 January 2019, but the Minister desisted from that approach after the application was filed);
  11. on 8 March 2019 the Federal Circuit Court of Australia dismissed our client’s application for judicial review;
  12. on 23 March 2020 the Federal Court of Australia allowed our client’s appeal; and
  13. on 24 March 2020 our client was granted a Special Category (subclass 444) Visa.

What was agreed by the parties

It was not in dispute that:

  1. the writ of certiorari issued by the Federal Circuit Court of Australia meant that our client was a lawful non-citizen for the entire period between being granted a Special Category Visa and departing Australia on 4 January 2018;
  2. and, as a result,
    our client’s purported removal on 4 January 2018 was not authorised by s 198 of the Migration Act 1958.

What was the issue?

A criterion for the grant of a Special Category Visa is that the applicant not be a ‘behaviour concern non-citizen.’ A behaviour concern non-citizen includes a person who has been ‘removed from Australia’ (see the definition prescribed by s 5 of the Migration Act 1958).

The central issue in the case was whether our client had been ‘removed from Australia.’ This is a question of broader importance because multiple sections of the Act, and the Migration Regulation 1994 attach legal consequences to a person’s removal from Australia. For example:

  1. removal from Australia results in the non-citizen being unable to satisfy PIC4014 and/or SRC5002; and
  2. persons are liable to repay the Commonwealth for the cost of their removal.
    What the Court determined

In allowing the appeal, the Court found that ‘removed from Australia’ does not mean ‘physically removed from Australia’ and as the purported removal of our client was not authorised by the Migration Act 1958, she was not ‘removed’ for the purposes of the definition of ‘behaviour concern non-citizen.’

What does this decision mean?

As it currently stands (subject to any decision in any appeal to the Full Court of the Federal Court of Australia that might be filed), if:

  1. your client was purportedly removed from Australia after having their visa cancelled; and
  2. that cancellation decision is subsequently quashed by a Court for jurisdictional error (or is, for another reason, taken not to have been made),

then your client has not been ‘removed from Australia’ for the purposes of the Migration Act. This means that, amongst other things, they should not be subject to the exclusion periods on future visa applications effectively imposed by PIC4014 and SRC5002 and, arguably, are not liable to pay money to the Commonwealth in accordance with s 210 of the Act.

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