Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft

The High Court of Australia heard an appeal by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against a decision of the Federal Court of Australia concerning the respondent, Ms. Moorcroft. The dispute centred on whether Ms. Moorcroft was a "behaviour concern non-citizen" under the *Migration Act 1958* (Cth) following her removal from Australia in 2018, which had been subsequently quashed by a court order. Ms. Moorcroft had returned to Australia and sought a special category visa, but her application was refused on the basis that she was a "behaviour concern non-citizen" due to her prior removal.

The primary legal issue before the High Court was to determine the meaning of "removed or deported from Australia" as it appeared in paragraph (d) of the definition of a "behaviour concern non-citizen" in section 5(1) of the *Migration Act*. Specifically, the Court had to decide whether this phrase referred to a removal that occurred in fact, irrespective of its legal validity, or only to a removal that was effected in accordance with the Act. The Court also considered whether the retrospective nullification of the 2018 cancellation decision affected the characterisation of Ms. Moorcroft as a "behaviour concern non-citizen".

The High Court allowed the Minister's appeal, holding that a non-citizen who has been removed from Australia in fact, regardless of the legal validity of that removal, falls within the definition of a "behaviour concern non-citizen" under paragraph (d) of section 5(1) of the Act. The Court reasoned that the plain meaning of "removed" in this context refers to the physical act of being taken out of Australia. The retrospective quashing of the cancellation decision did not alter the fact that Ms. Moorcroft had been physically removed from Australia. The Court rejected arguments based on the object of the Act, other provisions, extrinsic materials, and the principle of legality, finding that Parliament had clearly defined the criteria for being a "behaviour concern non-citizen".

Consequently, the High Court set aside the orders of the Federal Court and ordered that the appeal to the Federal Court be dismissed, effectively upholding the Minister's refusal of Ms. Moorcroft's special category visa application.