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

The appeal before the Court concerns a decision of the Federal Circuit Court of Australia (FCCA) in Moorcroft v Minister for Home Affairs [2019] FCCA 772, which dismissed an application for judicial review of a decision to refuse the appellant a Special Category (subclass 444) visa. The appellant, a citizen of New Zealand, had previously held a Special Category (subclass 444) visa, which was cancelled by a delegate of the Minister on 3 January 2018. The appellant was subsequently removed from Australia on 4 January 2018. The primary Judge in the FCCA quashed the delegate's decision to cancel the visa on 28 June 2018. When the appellant returned to Australia on 29 January 2019, her application for a Special Category (subclass 444) visa was refused by another delegate of the Minister. The appellant sought judicial review of that decision, which was dismissed by the FCCA.

The central legal issue before the Court was the interpretation of the term "removed or deported" from Australia within the context of the Migration Act 1958 (Cth). The Court had to determine whether the appellant's removal on 4 January 2018 constituted a "removal" under the Act, and consequently, whether she was an "unlawful non-citizen" and a "behaviour concern non-citizen" at the time of the second visa refusal. The Court also needed to interpret the term "behaviour concern non-citizen" as it applied to the appellant's circumstances.

The Court found that the appellant was not an "unlawful non-citizen" at the time of her removal from Australia on 4 January 2018, as the decision to cancel her visa was quashed by the FCCA. The Court further determined that the delegate's decision to refuse the appellant a Special Category (subclass 444) visa on 29 January 2019 was unlawful because it was based on an incorrect interpretation of the term "removed or deported" from Australia. The Court held that the appellant could not be considered a "behaviour concern non-citizen" at the time of the second visa refusal, as she was not an "unlawful non-citizen" when she was removed from Australia. The Court quashed the decision of the Minister to refuse the appellant a Special Category (subclass 444) visa and ordered the Minister to determine the appellant's application according to law.

The Court allowed the appeal, set aside the orders of the FCCA, and ordered the Minister to pay the appellant's costs of the proceedings in the FCCA and this appeal. The Court also directed that the name of the respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".