Moorcroft v Minister for Home Affairs - [2019] FCCA 772

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOORCROFT v MINISTER FOR HOME AFFAIRS

[2019] FCCA 772

Catchwords:

MIGRATION – behaviour concern non-citizen – meaning of removal from Australia – consequences of quashing a decision to remove – application dismissed

Legislation:

Migration Act 1958 (Cth) s.5, s.198

Applicant:

DEANNA LYNLEY MOORCROFT

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

BRG 79 of 2019

Judgment of:

Judge Vasta

Hearing date:

8 March 2019

Date of Last Submission:

8 March 2019

Delivered at:

Brisbane

Delivered on:

8 March 2019

REPRESENTATION

Solicitors for the Applicant:

Samuta McComber Lawyers

Counsel for the Respondent:

Mr N. Wood and Mr C. Lenehan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Applications filed 29 January 2019 and 11 February 2019 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRIBANE

No. BRG 79 of 2019

DEANNA LYNLEY MOORCROFT

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The Applicant, Deanna Lynley Moorcroft, is a citizen of New Zealand. On 17 November 2013, she came to Australia. She was here lawfully in Australia. During that time, she committed a number of criminal offences. She had been sentenced to imprisonment without actually having to serve that imprisonment, and was on parole as at 24 December 2017.
On that date, she returned to New Zealand to visit family. She has said that it was her intention to return to Australia on 2 January 2018.
When she flew back to Australia, she presented her New Zealand passport. It would seem, and there does not seem to be any argument to the contrary, that upon doing that, she was deemed to have been granted a subclass 444 visa to stay in this country.
A delegate of the Minister cancelled the 444 visa later that day or in the early hours of 3 January 2018. The circumstances of that do not matter much for this particular matter. Suffice to say that the reasons for doing so were somewhat vague and unparticularised.
The Applicant, who had remained in immigration detention, was then moved from Australia on 4 January 2018.
Having gone back to New Zealand, the Applicant was aggrieved by the decision of the delegate. It was a matter for which she then sought judicial review.
The matter was listed before me, however the Minister conceded the point and I made an order, by consent, on 28 June 2018 quashing the decision of the delegate, for the reasons that the allegations that were put to the Applicant on 2 January 2018, were not particularised, and therefore she was not afforded the opportunity to actually answer.
The Applicant was in New Zealand at that time, and she remained in New Zealand up until 29 January 2019. On that day, she came to Australia. She was not granted a section 444 visa upon her arrival.
The delegate of the Minister ended up giving her a notification of refusal for application of special category visa 444. The ground for refusal was detailed as this:
Specifically, your application was refused because you did not satisfy the following criteria:
You are a behaviour concern non-citizen as defined in s5 of the Act and hence fail to meet the criteria in s32(2)(a)(ii). Specifically you a behaviour concern non-citizen as:
(x) You have been removed or deported from Australia or another country.
As you do not meet the above criteria, I am not satisfied that you are eligible for the grant of a Special Category visa. As such your visa application has been refused.
The Applicant has come back to this Court for an application that this decision also be quashed, as it has been affected by jurisdictional error.
To start with, one needs to look at what is a “behaviour concern non-citizen”. That definition is found at s.5 of the Migration Act 1958 (Cth) (“the Act”), which details this:
“behaviour concern non-citizen” means a non-citizen who:
… d) has been removed or deported from Australia or removed or deported from another country…
Section 32(2), detailing with special category visas, reads:
… (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…
The issue here is a very short point. That is, whether or not the Applicant had been removed or deported from Australia or another country.
The argument for the Applicant was that the Applicant had not been removed. This was based on a contention that originally the Applicant was removed from Australia in accordance with the power that had been conferred by s.198(2) of the Act. That power was to remove a person who was in Australia and who was an unlawful non-citizen. At that time, the Applicant was an unlawful non-citizen because her section 444 visa had been revoked.
The decision to revoke that visa was found by me, in June 2018, to have been affected by jurisdictional error. That means that the decision was void. However, the 444 visa was revoked, in any event, because the Applicant did physically leave Australia.
The Applicant contends that the removal was an unlawful removal, and because it was unlawful, that, retrospectively, it can be deemed that she was not removed because the Minister did not have the power to remove her.
It is submitted that such a physical act of removing the Applicant on 4 January 2018 now carried no relevant legal consequences. Therefore, if the Applicant was not “removed”, then she did not come under the definition of “behaviour concern non-citizen”, and therefore the decision not to grant her a section 444 visa on 29 January 2019 is affected by jurisdictional error.
The real submission of the Applicant is that, when one looks at s.5(d), the words “has been removed or deported from Australia, or removed or deported from another country”, should be read as “lawfully removed or deported from Australia or another country”.
In this respect, what the Minister submits is quite correct. This is a matter of statutory interpretation. One can see straight away why such an argument is very attractive. The Applicant was removed because of a reason that a Court has found was in error.
Therefore, one would like to think that that means that the consequences of that decision do not affect her, and it is as if the matter never happened. But that is not how one goes about the business of statutory interpretation.
One then does have to look at the whole of the construction of the definition in s.5 of “behaviour concern non-citizen”. When one looks at categories in (a), (b) and (c), one can determine that the legislature has not looked at the actual behaviour of the non-citizen.
The legislature, in subsection (a), is concerned with whether the person has been convicted of a crime and sentenced, therefore, to imprisonment of at least one year. That does not mean that the legislature is concerned with whether the person was rightly convicted, or properly convicted, just simply whether they were convicted.
Subsection (b): whether the person has been convicted of two or more crimes and sentenced to imprisonment for periods that add up to at least one year, and whether or not the crimes were of the same kind, or committed at the same time, or convictions were at the same time, or the periods were consecutive.
Again, the legislature is not concerned with what the justification was; whether this was a correct determination or any other concerns as to the rightness or correctness of the sentence for conviction. It is simply looking at the conviction.
Subsection (c): has been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed whilst the person was of unsound mind. Again, these are legal constructs that do not look at the actual behaviour, but what it is that a Court or authority has done in relation to the person, whether that was right or wrong.
Obviously, if a person has been wrongly convicted and a Court has thereafter quashed the conviction, then it would follow that there is no longer a conviction. And therefore the consequences of that conviction, are irrelevant. However, if a person had been convicted of a crime and sent to jail, a subsequent ruling that the conviction was a wrongful one does not mean that the person did not ever actually go to jail.
But the Act does not go behind what a Court has done, it simply looks at what the Court has done.
Similarly, under subsection (d), the legislature does not look at whether or not the removal or the deportation was lawful. The legislature is concerned with the fact of removal, or the deportation.
If it were other than this, it would cause a delegate to be not just familiar with the laws of any other place, but quite conversant with them. For example, if a New Zealand citizen who was convicted in a foreign country of an offence, came to Australia and argued that the foreign country was such that one could have no faith in the way in which the criminal justice system is administered, and that therefore one should disregard such a conviction, it would put a delegate in an impossible position to be able to make a call as to whether the person was “fully” or “properly” convicted.
Similarly, to have to decide whether a person has been removed or deported from Australia or removed or deported from another country, “lawfully or justly”, puts a gloss on the words of the section that it is hard to see that Parliament intended. Again, it is not for a delegate to look at whether the removal was proper, or lawful, or should have been done. The fact of the removal is all that the legislature has required.
Whilst that may have, what may be seen as, an unfortunate consequence in this case, because one can easily ascertain whether the removal was a lawful or justified one, that does not mean that the facts of this matter determine how one needs to interpret the statute.
The statute’s words are very plain: “have you been removed or deported from Australia, or removed or deported from another country?”. That is a fact in issue.
To my mind, it would be dangerous at the very least, and going too far at the most, for a Court to imbue the words “removed or deported” as having another meaning than they ought ordinarily have.
The Applicant argues that every other time the word “remove” or “deport” is used in the Act it means lawfully removed or lawfully deported and therefore, one can interpret that that is what is being meant in the definition.
Unfortunately, there were no other examples that were able to be given of this, and my very rudimentary look through the Act really talks about sections giving the legal authority and power to remove or deport, rather than imbuing the words “remove” or “deport” with a meaning of “lawfully” remove or “lawfully” deport.
It is my view that what has been enacted in s.5 regarding “behaviour concern non-citizen”, to use the words of the counsel of the Respondent, are “hard and precise terms that are not devaluative”.
The Applicant makes other submissions that, if the interpretation that I have deemed is the interpretation were to be accepted, that it means that Parliament has gone further than it has authority to go. I do not accept that proposition.
Whilst it is that the Rule of Law is the concept that has imbued our Constitution, the way in which s.32 of the Act has been written allows persons who are in the situation that the Applicant has been in, other ways to get into the country. An example of this is found at s.32(2)(c) and the regulations that then follow.
This is in keeping with the aims and objects of the Act, which primarily are to regulate, in the national interest, the coming into and presence in Australia of non-citizens. It seems to me that such is within the spirit of the Rule of Law, and certainly within the Constitutional power of the Parliament.
While this means that may be a very unfortunate consequence for the Applicant in this case, I cannot find that the decision made by the delegate in this case has been affected by jurisdictional error.
I therefore dismiss the application, with costs fixed in the sum of $7,467.00.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 April 2019