Johnston (Migration)

This matter concerned an application for a Special Category (Temporary) (Class TY) visa, Subclass 444, by Mr Johnston. The delegate refused his application on the basis that he was a behaviour concern non-citizen, due to his deportation from the United Kingdom in 2011. Mr Johnston had declared this deportation in his application and provided a copy of his New Zealand passport with a crossed-out travel stamp from Heathrow.

The primary legal issue before the Tribunal was whether Mr Johnston met the eligibility requirements for the Subclass 444 visa, specifically whether he was a behaviour concern non-citizen as defined by the *Migration Act 1958* (Cth). The Act defines a behaviour concern non-citizen to include a person who has been removed or deported from another country. The Tribunal was also required to consider the implications of Mr Johnston's multiple re-entries into Australia on Subclass 444 visas after his deportation from the United Kingdom, and whether his circumstances warranted referral for Ministerial Intervention.

The Tribunal found that Mr Johnston had indeed been deported from the United Kingdom in 2011, as evidenced by his passport and his own statement. Consequently, he was classified as a behaviour concern non-citizen under section 5 of the Act. This classification meant he failed to meet the requirements of section 32(2)(a)(ii) of the Act, which prohibits the grant of the visa to such individuals. The Tribunal noted that a Subclass 444 visa is a temporary visa permitting a New Zealand citizen to remain in Australia, and it ceases to be in effect upon departure, requiring a new application for re-entry. The Tribunal observed that the legislation provided no discretion to address Mr Johnston's circumstances in this context.

Despite affirming the decision not to grant the visa, the Tribunal considered Mr Johnston's personal circumstances, including shared care of Australian children and potential financial hardship, in light of the ministerial guidelines for discretionary power under section 351 of the Act. Accordingly, the Tribunal referred the case to the Department for consideration by the Minister.