FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
23 March 2020
THE COURT ORDERS THAT:
2. The appeal be allowed.
3. The orders of the Federal Circuit Court of Australia of 8 March 2019 be set aside.
4. The decision of the respondent dated 29 January 2019 refusing the appellant’s application for a Special Category (subclass 444) visa be quashed.
5. The respondent determine the appellant’s application for a Special Category (subclass 444) visa according to law.
6. The respondent pay the appellant’s costs of the proceedings in the Federal Circuit Court of Australia in the fixed amount of $7,467.00
7. The respondent pay the appellant’s costs of this appeal, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 Before the Court is an appeal from the judgment and orders of the Federal Circuit Court of Australia in Moorcroft v Minister for Home Affairs  FCCA 772, delivered on 8 March 2019. In that decision, the primary Judge dismissed an application for judicial review of a decision of a delegate to the Minister refusing to grant the appellant a Special Category (subclass 444) visa.
2 The appellant is a citizen of New Zealand. She resided in Australia between 17 November 2013 and 24 December 2017 as the holder of a Special Category (subclass 444) visa under the Migration Act 1958 (Cth) (Migration Act).
3 Whilst living in Australia, the appellant committed a number of offences and was sentenced to a term of imprisonment. The appellant was not required to serve prison time for that sentence.
4 On 24 December 2017, the appellant left Australia and travelled to New Zealand.
5 On 2 January 2018, the appellant returned to Australia and, upon presenting her New Zealand passport, was automatically granted a Special Category (subclass 444) visa (the Earlier Subclass 444 Visa). A Special Category (subclass 444) visa is granted pursuant to subsection 32(2) of the Migration Act, which provides:
A criterion for a special category visa is that the Minister is satisfied that the applicant is:
(a) a non-citizen:
(i) 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
(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen.
6 It is not in dispute that such a visa is a temporary visa which allows the visa holder to stay and work in Australia while he or she remains a New Zealand citizen.
7 On 3 January 2018, the appellant’s Earlier Subclass 444 Visa was cancelled by a decision of a delegate of the Minister made pursuant to s 116(1)(e) of the Migration Act. The appellant was held in immigration detention until early on the morning of 4 January 2018. On 4 January 2018 the appellant was taken to Brisbane airport and required to depart Australia pursuant to s 198(2) of the Migration Act on the basis that she was an unlawful non-citizen.
8 On 7 February 2018, the appellant made an application for judicial review of the cancellation decision of the delegate in the Federal Circuit Court of Australia. On 28 June 2018, the primary Judge made orders, by consent, which quashed the decision of the delegate of 3 January 2018. The relevant Federal Circuit Court orders were as follows:
BY CONSENT THE COURT ORDERS THAT:
1. A writ of certiorari issue directed to the respondent quashing its decision dated 3 January 2018.
2. The respondent pay the applicant’s costs, fixed in the sum of $3,667.00.
3. The hearing listed on 26 November 2018 at 2:15 pm before [the primary Judge] be vacated.
STATEMENT ACCOMPANYING CONSENT ORDERS
THE COURT ORDERS BY CONSENT THAT:
A. The respondent concedes that the decision of the delegate dated 3 January 2018 is affected by jurisdictional error, in that the delegate failed to provide the applicant with sufficient particulars of the grounds that appeared to exist for cancelling her visa and of the information because of which those grounds appeared to exist, as required by s 119(1)(a) of the Migration Act 1958 (Cth).
9 On 29 January 2019, the appellant arrived back in Australia, but was informed that her application for a Special Category (subclass 444) visa (made earlier that day) had been refused. The notification of refusal was in a document headed “Notification of Refusal of application for a Special Category Visa (TY444)” (notification). It is not in dispute that the decision was that of a delegate of the Minister under s 65 of the Migration Act.
10 The notification contained the following information:
After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.
Ground for refusal
Specifically, your application was refused because you did not satisfy the following criteria:
You are a behaviour concern non-citizen as defined in s5 of the Act and hence fail to meet the criteria in s32(2)(a)(ii). Specifically you are a behaviour concern non-citizen as:
(x) You have been removed or deported from Australia or another country.
As you do not meet the above criteria, I am not satisfied that you are eligible for the grant of a Special Category visa. As such your visa application has been refused.
Your immigration status
As you are not a holder of a visa, you have been refused immigration clearance and will be removed from Australia as an unlawful non-citizen.
Federal circuit court
11 On 29 January 2019, the appellant filed an application in the Federal Circuit Court for judicial review of the delegate’s decision as set out in the notification. An amended application was filed on 11 February 2019.
12 At  of the primary judgment, the primary Judge noted that the issue for determination was whether the appellant had been removed or deported from Australia or another country as stated in paragraph (d) of the definition of “behaviour concern non-citizen” in s 5 of the Migration Act (s 5(d)).
13 His Honour summarised the submissions of the appellant at –:
14. The argument for the Applicant was that the Applicant had not been removed. This was based on a contention that originally the Applicant was removed from Australia in accordance with the power that had been conferred by s.198(2) of the Act. That power was to remove a person who was in Australia and who was an unlawful non-citizen. At that time, the Applicant was an unlawful non-citizen because her section 444 visa had been revoked.
15. The decision to revoke that visa was found by me, in June 2018, to have been affected by jurisdictional error. That means that the decision was void. However, the 444 visa was revoked, in any event, because the Applicant did physically leave Australia.
16. The Applicant contends that the removal was an unlawful removal, and because it was unlawful, that, retrospectively, it can be deemed that she was not removed because the Minister did not have the power to remove her.
17. It is submitted that such a physical act of removing the Applicant on 4 January 2018 now carried no relevant legal consequences. Therefore, if the Applicant was not “removed”, then she did not come under the definition of “behaviour concern non-citizen”, and therefore the decision not to grant her a section 444 visa on 29 January 2019 is affected by jurisdictional error.
18. The real submission of the Applicant is that, when one looks at s.5(d), the words “has been removed or deported from Australia, or removed or deported from another country”, should be read as “lawfully removed or deported from Australia or another country”.
14 His Honour then turned to s 5 of the Migration Act and in particular the definition of “behaviour concern non-citizen”. “Behaviour concern non-citizen” is defined as:
"behaviour concern non-citizen" means a non-citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
15 His Honour observed:
21. … When one looks at categories in (a), (b) and (c), one can determine that the legislature has not looked at the actual behaviour of the non-citizen.
16 In relation to the meaning of “removed or deported” in s 5(d), his Honour continued:
27. But the Act does not go behind what a Court has done, it simply looks at what the Court has done.
28. Similarly, under subsection (d), the legislature does not look at whether or not the removal or the deportation was lawful. The legislature is concerned with the fact of removal, or the deportation.
29. If it were other than this, it would cause a delegate to be not just familiar with the laws of any other place, but quite conversant with them. For example, if a New Zealand citizen who was convicted in a foreign country of an offence, came to Australia and argued that the foreign country was such that one could have no faith in the way in which the criminal justice system is administered, and that therefore one should disregard such a conviction, it would put a delegate in an impossible position to be able to make a call as to whether the person was “fully” or “properly” convicted.
30. Similarly, to have to decide whether a person has been removed or deported from Australia or removed or deported from another country, “lawfully or justly”, puts a gloss on the words of the section that it is hard to see that Parliament intended. Again, it is not for a delegate to look at whether the removal was proper, or lawful, or should have been done. The fact of the removal is all that the legislature has required.
17 In summary, the primary Judge found that whether a person has been “removed or deported from Australia, or removed or deported from another country” was a factual issue. His Honour concluded that the delegate’s decision was not affected by jurisdictional error and dismissed the appeal.
Appeal to the Federal court
18 In a notice of appeal filed 15 March 2019, the appellant relied on the following ground of appeal:
The Federal Circuit Court of Australia erred in failing to find that there was a compelling reason why the words ‘removed or deported from Australia’ and ‘removed or deported from another country’ in the definition of ‘behaviour concern non-citizen’ prescribed by s 5 of the Migration Act 1958 should be given different meanings.
a. There is a compelling reason why the words ‘removed or deported from Australia’ should be given the meaning ‘lawfully removed or deported from Australia.’
i. The principle of legality prescribes that if Parliament intends to enact legislation that significantly impacts on fundamental principles and values within Australia’s system of law, then Parliament must disclose that intention through use of clear and unambiguous language.
ii. The rule of law, and specifically the principle that officers of the executive government should act within the powers conferred on them by Parliament, is a fundamental principle and value within Australia’s system of law.
iii. Parliament giving legal effect to the prospective conduct of an officer of the executive government that Parliament had not authorised is inconsistent with the central principles rule of law (and, in particular, the principle described above).
iv. Parliament did not, in the text of the Act or in any extrinsic material, use clear or unambiguous language to indicate that it intended to enact a law that is incongruent with a fundamental aspect of the rule of law by giving legal effect to a prospective unlawful act of the executive government.
v. It is therefore preferable that the words ‘removed or deported from Australia’ be given the meaning ‘lawfully removed or deported from Australia.’
b. There is a compelling reason why the words ‘removed or deported from another country’ should not be read as being subject to the lawfulness of the removal or deportation from another country.
i. Such an interpretation would be inconsistent with the ‘act of state doctrine,’ in that it the principles of the act of state doctrine would be inconsistent with the impertinence and paternalism that would arise if a reference in an Australian statute to an act of a foreign sovereign State were construed as referring only to an act which, in the view of an Australian court, confirms with the laws of the foreign State.
ii. In the words of the Respondent,
Parliament cannot reasonably be taken to have supposed that the Minister (or his delegate)would have any understanding of the diverse legal systems of the world, the content of the municipal laws of all of the countries of the world governing removal or deportation, the mode (if any) by which the “validity” (or even “legality”) of the exercise of such powers maybe challenged, or the consequences of such a challenge if successful (e.g., as to whether the consequence is that the removal or deportation is a nullity)
c. While it is generally preferable for the same words used in a statute to be given the same meaning, especially where those words appear in the same section, in the unique circumstances of the definition of ‘behaviour concern non-citizen’ prescribed by s 5 of the Migration Act 1958, it is preferable for the words ‘removed or deported’ to be given different meanings as they relate to removals or deportations from Australia and removals or deportations from another country.
19 Based on that ground of appeal, the appellant sought the following orders:
1. The orders of the Federal Circuit Court of Australia issued on 8 March 2019 be set aside.
2. The Respondent’s decision dated 29 January 2019 refusing the Appellant’s application for a Special Category (subclass 444) Visa be quashed.
3. An order of mandamus directing the Respondent to determine the Appellant’s application for a Special Category (subclass 444) Visa according to law.
4. The Respondent pay the Appellants costs of the proceedings in the Federal Circuit Court of Australia in the fixed amount of $7,467.00.
5. The Respondent pay the Appellant’s costs of this appeal.
20 Ultimately, this appeal is determinable by reference to an issue of statutory interpretation and construction, being the meaning of “removed or deported from Australia” in s 5(d) of the Migration Act.
submissions of the parties
21 The crux of the appellant’s submissions is that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia. The appellant submitted that the decision of the primary Judge attached a legal consequence to an ultra vires act of the Executive, and that:
(a) such a broad interpretation is inconsistent with the principle of legality and at least one other principle of statutory construction; and
(b) subparagraph (d) of the definition of ‘behaviour concern non-citizen’ prescribed by s 5 of the Act should be read down as meaning ‘has been lawfully removed or deported from Australia or removed or deported from another country’.
22 In relation to the principle of legality in statutory construction, the appellant contended, in summary:
Parliament must use clear and unambiguous words before a statute will be construed as displacing a fundamental common law principle or right.
The Australian Constitution assumes the rule of law is recognised at common law.
While Parliament has the power to enact legislation which has the effect of attaching legal consequences to a decision or action that is otherwise void for jurisdictional error, there is an assumption that a decision or act involving jurisdictional error is void for all purposes unless the statute under which the power is conferred necessitates a contrary conclusion.
The Migration Act should not be taken to attach legal consequences to an unlawful decision or action of the Executive unless there is clear and unambiguous statutory language evidencing that intention.
The Migration Act, and the Explanatory Memorandum accompanying the Migration Reform Bill 1992 (Cth) which made amendments to the Migration Act in respect of detention, removal and deportation of non-citizens, indicated that Parliament had not considered what consequences, if any, should attach to an unlawful exercise of the removal power under the Act.
23 The respondent’s essential contention was that the term “removed or deported” in s 5(d) meant removed or deported in fact. Accordingly, the respondent submitted that the delegate did not make a jurisdictional error in concluding that the appellant was a “behaviour concern non-citizen”, in circumstances where she had been removed in fact from Australia on 4 January 2018.
24 Section 5(d) of the Migration Act, insofar as it concerns the definition of “behaviour concern non-citizen”, requires that the non-citizen has been “removed” or “deported” from Australia or another country. It is my understanding that the appellant was purportedly “removed” rather than deported because:
the Minister cancelled her Earlier Subclass 444 Visa and she was then required to leave Australia forthwith;
no deportation order was made under Pt 2 Div 9 of the Migration Act in respect of this departure from Australia; and
the Minister, in submissions, referred to the appellant as having previously been “removed” from Australia.
25 “Remove” is defined – unhelpfully – in s 5 of the Migration Act as “remove from Australia”. A “removee” is defined as meaning “an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2”. Div 8 of Pt 2 of the Migration Act is headed “Removal of unlawful non-citizens” and relevantly includes s 198(2), which provides:
Removal of unlawful non-citizens in other circumstances
(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b) who has not subsequently been immigration cleared; and
(c) who either:
(i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
26 I note the thoughtful and thorough reasoning of the primary Judge at first instance in this matter. After extensive consideration, however, I have reached a different conclusion to his Honour. I consider that the appeal should be allowed and the decision of the Minister to refuse the appellant a Special Category (subclass 444) visa be quashed. I have reached this view for the following two reasons.
27 First, his Honour noted at  that:
33… it would be dangerous at the very least, and going too far at the most, for a Court to imbue the words “removed or deported” as having another meaning than they ought ordinarily have..
28 The Minister in submissions, and in turn his Honour in his reasons, emphasised the issue of “lawfulness” in respect of the act of removal, and the fact that a person could be removed or deported as a matter of fact without that action being “lawful”. His Honour concluded that the literal meaning of “removed or deported” was referable to the relevant event, rather than the qualitative aspect of the removal or deportation being lawful or otherwise.
29 In relation to the lawfulness of the removal, I agree that it would be wrong to contort the language of the statute to give it the effect urged on me by the appellant, and imply the words "lawfully" or "validly" into s 5(d) of the Migration Act.
30 However, whether the appellant falls under the definition of “behaviour concern non-citizen” must depend on whether he or she has been “removed” from Australia within the meaning of the Migration Act, particularly in the context of Pt 2 Div 8 of the Migration Act. The words “removed or deported” must be given a meaning in light of the provisions of the Migration Act. In this respect, I note comments of the High Court referable to statutory interpretation and the proper construction of words, albeit in a different statutory context, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;  HCA 28 at -.
31 Although the literal meaning of “remove” may encompass all physical removals from Australia, the relevant statutory context, in particular Pt 2 Div 8 of the Migration Act, demonstrates that “remove” has a more confined meaning in the Migration Act than simple physical removal. The Migration Act requires that a person has been “removed” – and is therefore a “removee” – when that removal occurs under Pt 2 Div 8 of the Migration Act. Removal under Pt 2 Div 8 is dependent upon a person being an “unlawful non-citizen”. This confined meaning must be carried into the definition of “behaviour concern non-citizen”.
32 I am fortified in this view, noting that visa holders have statutory and non-statutory rights, both under the Migration Act and the general law. The provisions in the Migration Act contemplating cancellation of visa cannot be construed in a manner which permits cancellation that is arbitrary or capricious, or abandons common sense (compare comments of French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332;  HCA 18 at ).
33 Similarly, an interpretation of the legislation which enables arbitrary or capricious refusal of a visa would thwart the purpose of the Migration Act.
34 These principles can be illustrated, for example, by reference to circumstances where a person is physically removed from Australia and that departure is not sanctioned by the Migration Act, such as the abduction of a child. It could not be said in such circumstances that the person has been “removed” within the meaning of Pt 2 Div 8 of the Migration Act. The Minister accepted that such a person would not be a “removee” under the Migration Act, but submitted that the issue could be addressed by reading the term “removal or deportation” in s 5(d) as referable only to an action of an organ of government or an arm of government. The contention of the Minister assumed that any action by an organ of government or an arm of government requiring departure from Australia of a non-citizen must be treated as either removal or deportation. While that gloss on the construction of the term “removal or deportation” may be correct, it does not wholly address the question whether the appellant had been “removed” under Pt 2 Div 8 of the Migration Act and therefore “removed” for the purposes of s 5(d). Further, the Minister’s argument does not address irregularities in respect of physical removals which are arbitrary or capricious, however unusual such events may be in practice.
35 In this case, the appellant was physically removed from Australia on 4 January 2018. However, as the decision to cancel her Earlier Subclass 444 Visa under s 116(1)(e) on 3 January 2018 was quashed for jurisdictional error (see  of the primary judgment), it cannot be said that :
she was an “unlawful non-citizen” at that time; or
consequently that she was a “removee” under the Migration Act; or
that she was “removed” under Pt 2 Div 8 of the Migration Act.
36 My second reason for concluding that the appeal ought be allowed concerns the actual knowledge of the Minister at the time of the refusal of the appellant’s visa.
37 His Honour observed that it was not for the delegate in refusing the appellant’s Special Category (subclass 444) visa to investigate the circumstances of her previous departure from Australia. This may be so. However, it was incumbent on the delegate to be satisfied, as a matter of public record, that the appellant had been either deported under Pt 2 Div 9 or removed under Pt 2 Div 8 of the Migration Act. I make this observation in light of the authority of the Full Court in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 427;  FCAFC 84, where their Honours observed at :
41. …The definition of ‘behaviour concern non-citizen’ is in precise terms which do not allow for any evaluative judgments. It is applied by reference to matters essentially of public record….
38 In this case, there was clearly material before the delegate, in the form of the letter from the appellant’s legal representative to Australian Border Force dated 29 January 2019, to establish that:
the decision of the Minister, dated 3 January 2018, to cancel the appellant’s Earlier Subclass 444 Visa had been quashed by the orders of the Federal Circuit Court of Australia of 28 June 2018; and
critically – these orders of 28 June 2018 had been made with the Minister’s consent.
39 As a matter of public record, the Minister’s decision to cancel the appellant’s Earlier Subclass 444 Visa and require her to leave Australia had been quashed by the Federal Circuit Court of Australia by reason of jurisdictional error. The appellant was therefore not, in respect of that decision, an unlawful non-citizen. This was a matter of public record, and should have been taken into account by the delegate in refusing the appellant a Special Category (subclass 444) visa on 29 January 2019.
40 Similarly for this reason, I am unable to see how the delegate could have been satisfied that the appellant had been “removed” from Australia for the purposes of s 5(d) of the Migration Act.
41 In summary, it follows that:
the appellant was not an unlawful non-citizen as at 4 January 2018;
the delegate was put on notice of this at the time of the decision to refuse the appellant a Special Category (subclass 444) visa; and
therefore, the appellant could not have been a “behaviour concern non-citizen” on 29 January 2019.
42 In my view the appeal should be allowed. Costs should follow the event.