NZ citizens removed from Australia means unable to return?

A New Zealand citizen removed from Australia may not be able to return to Australia. If you have been removed from Australia after your visa has been cancelled, then you may not be able to return to Australia even if a later decision is made to overturn the decision to cancel your visa. New Zealand citizens may not be able to return on special category (subclass 444) visa. 

The High Court of Australia has held that even if a quashing order was made to retrospectively nullify a purported cancellation, this may not change the earlier fact that a person was ‘removed from Australia’. 

In the case of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19, the Respondent (Moorcroft) is a citizen of New Zealand. She had previously resided in Australia as the holder of a special category visa. 

As a result criminal convictions, her special category visa (subclass 444) was cancelled and she was removed from Australia on 04 January 2018. 

On 28 June 2018, a judge of the Federal Circuit Court of Australia made an order by consent to quash the purported cancellation of the Respondent’s visa.  The legal effect of this order was that her visa did not cease on 03 January 2018 (date of cancellation) and the Minister had no power to remove the Respondent on 04 January 2018. 

Issue

When she attempted to return to Australia on 29 January 2019, her application upon entry for the special category visa (subclass 444) was refused on the basis that she was considered a “behaviour concern non-citizen” per paragraph (d) of the definition. Paragraph (d) referred to a person who ‘has been removed or deported from Australia or removed or deported from another country’. 

Thus, the question here was, is the correct interpretation (a) or (b):

1. She was removed from Australia on 04 January 2018, by fact; 
2. She was not removed from Australia on 04 January 2018 because the quashing order nullified this act. 

Finding

The High Court of Australia adopted the literal interpretation of the legislation. That is (a), regardless of what happens afterwards, by way of events, she was indeed ‘removed’ from Australia on 04 January 2018. The quashing order only nullified the decision to cancel the visa on 03 January 2018.

This preferred construction produced harsh consequences in that New Zealand citizens may be precluded from obtaining a special category visa if they were removed from Australia in fact (even if they later receive a favourable judgement overturning the decision to cancel their visa). 

The court said that, ‘[a]t least with respect to removal or deportation from Australia, a person may apply to a court to enjoin that act before it occurs….’. 

Thus, instead of being removed from Australia, a person whose visa has been cancelled should apply to court for an injunction order to prevent the removal from Australia and maintain status quo within Australia. This is because, once removed, any favourable judgement of the court relating to the decision to cancel the visa does not render subsequent events such as removal from Australia as invalid. 

You may consult with us to find out more. If you intend to apply for a visa, you should try to do so before any increase in fees.