Federal Court: Delegate purported to cancel NZ citizen Appellant's subclass 444 visa under s 116(1)(e) of the Migration Act and DHA purported to remove her under s 198. The cancellation was then quashed by the FCCA on the basis of jurisdictional error (JE). 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, a person who "has been removed or deported from Australia or removed or deported from another country" is a "behaviour concern non-citizen". Can it be said that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia. Alternatively, can it be said that Appellant was never removed under the Act?
The questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia, with the result that, as the cancellation had no legal effect by reason of jurisdictional error, the Appellant was not a behaviour concern non-citizen?
Question 2: Alternatively, can it be said that, as:
- removal under the Migration Act 1958 (Cth), as opposed to simply physical removal, requires the "removee" to be an unlawful non-citizen; and
- the cancellation had no legal effect by reason of jurisdictional error and, as a result, the Appellant was never an unlawful non-citizen
the Appellant was never "removed" (within the meaning given to that term under the Act) from Australia and therefore was not a behaviour concern non-citizen?
The FCA answered those questions as follows:
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