Consequences of removal under s 199

Federal Court: the NZ citizen Appellant signed papers requesting to be removed from Australia under s 199(1) of the Migration Act 1958, in which case the airfare was paid for by the DHA. However, the DHA found that the removal rendered her a 'behaviour concern non-citizen': s 5(1). As a result, she was unable to obtain a further subclass 444 visa. If the Appellant did not understand the significance of her removal request, was she really a 'behaviour concern non-citizen'?

Summary and discussion

The Appellant's partner was an unlawful non-citizen and had been removed from Australia, following which the Appellant signed papers requesting to also be removed from Australia under s 199(1) of the Migration Act 1958, which read (and continues to read) as follows:

(1)    If:

(a)    an officer removes, or is about to remove, an unlawful non-citizen; and

(b)    the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia;

an officer may remove the spouse or de facto partner as soon as reasonably practicable.

The Appellant later on applied for a 444 visa, but that visa was refused based on s 32(2) of the Act, which read (and continues to read) as follows (emphasis added):

(2)  A criterion for a special category visa is that the Minister is satisfied 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

Subsection s 5(1) of the Act included (and continues to include) the following:

behaviour concern non-citizen means a non-citizen who:

...

(d)  has been removed or deported from Australia or removed or deported from another country ... 

The Appellant applied to the Federal Circuit Court for judicial review, but that application was dismissed. The Appellant appealed that decision to the Federal Court (FCA).

The question to the FCA was: if it could be demonstrated that the Appellant did not understand the significance of requesting her own removal, was the Appellant really a "behaviour concern non-citizen" as defined in s 5(1)?

The FCA answered as follows ...

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