Baruchi (Migration)

This matter concerned an application for review of a decision by the Tribunal affirming the refusal to grant the applicant, a New Zealand citizen, a Special Category (Temporary) (Class TY) Subclass 444 visa. The applicant had a complex immigration history, including two deportations from Australia and one removal, as well as previous grants of other visas and periods of residence in Australia. He sought the visa to facilitate travel between Australia and New Zealand to visit his Australian citizen and resident children and grandchildren.

The primary legal issue before the court was whether the applicant was a "behaviour concern non-citizen" as defined in section 5(1) of the Migration Act 1958 (Cth). This definition is critical as a criterion for a Special Category visa is that the applicant is neither a behaviour concern non-citizen nor a health concern non-citizen. The applicant argued that his past actions, including deportations, were minor mistakes for which he had been punished and that he had no criminal record, pointing to his subsequent good character and family ties in Australia.

The Tribunal found that the applicant met the definition of a "behaviour concern non-citizen" under paragraph (d) of section 5(1) of the Act, specifically because he had been deported from Australia on two occasions and removed from Australia once. The Tribunal reasoned that eligibility under section 32 of the Act for a Special Category visa may arise even if a non-citizen is of behaviour concern, provided the reasons do not warrant exclusion from Australia. However, this exception did not apply to the applicant as he had been deported or removed, rather than excluded. Consequently, the applicant could not satisfy the requirements of section 32(2)(a)(ii) or section 32(2)(c) for the visa.

The Tribunal affirmed the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.