High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?
A delegate purported to cancel the subclass 444 visa of a New Zealand citizen under s 116(1)(e) of the Migration Act 1958 (Cth) and the Department purported to remove her under s 198. The cancellation was then quashed by the Federal Circuit Court on the basis of jurisdictional error (JE). The Appellant eventually tried to re-enter Australia, but was refused a 444 visa because: s 32(2)(a)(ii) provided that a 444 visa applicant must not be a "behaviour concern non-citizen"; under s 5(1), a person who "has been removed or deported from Australia or removed or deported from another country" is a "behaviour concern non-citizen".
Some of the questions to the High Court (HCA) were as follows:
Question 1: Can it be said that that a "non-citizen will not have been removed from Australia within the meaning of para (d) [of the definition of "behaviour concern non-citizen" under s 5(1)] unless that removal was effected in accordance with Div 8 of Pt 2 of the Act" or 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"?
Answer: No.
Question 2: Can it be said that "the legal acts referred to in paras (a) to (c) [of the definition of "behaviour concern non-citizen" under s 5(1)] can be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?
Answer: Yes.
The HCA answered those questions as follows: