Case: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Outcome: applied
The question of the absorption of a child into the Australian community was considered by the Full Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236. At [49] the Full Court noted with apparent approval the following passage from the reasons for judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at [45] - [46] : In relation to the question of absorption into the community French J said in Johnson at [45]-[46]: '45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): ... there does not appear to be any general agreement as to the tests for the application of this very vague conception. The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. 46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288.' 32 In Moore at [53]-[54] the Full Court stated: The absorption of children into the Australian community will be very much influenced by the absorption or otherwise of their parents. If (say) a boy entered Australia with his parents and his siblings, as an immigrant, when only one month old, different considerations would apply to deciding the question of his absorption than those which would apply if (say) a boy entered Australia as an immigrant with his parents and siblings when he was already 17 years of age. ... Absorption, to be complete, will invariably require the passage of a considerable period of time. 33 It may be assumed that the contrast that the Full Court drew in Moore between a one month old boy and a boy of 17 years of age was between (a) an infant entirely dependent on his parents and incapable of forming an intention of his own to make a home in Australia, and (b) an adolescent approaching adulthood who might well have adopted the Australian way of life for himself and formed an intention to remain part of the Australian community. 34 As mentioned above, as at Independence Day Mr Charlie was less than two years old. During the proceeding six months he would have been entirely dependent on other family members, and in particular his parents. He would have been, by reason of immaturity, incapable of forming an intention of his own of making a home on Darnley Island as opposed to in Papua. I conclude that the question of whether he had been absorbed into the Darnley Island community prior to Independence Day is to be determined by reference to whether his parents had by that time been absorbed into that community. 35 Nothing in the authorities seems to me to provide any support for a contention that Mr Charlie's parents could have become absorbed into the Darnley Island community in the short period of time between April and September 1975. It is to be remembered that a consequence of absorption into the Darnley Island community would probably have been loss of membership of the family's former Papuan community. 36 As noted above, the Full Court in Moore referred to a "considerable period of time" being invariably required for absorption. Their Honours' view finds support in Ex parte Walsh and Johnson where Knox CJ spoke of a person growing out of the condition of being an immigrant "in course of time and by force of circumstances" (see [27] above). It seems to me that the period of approximately five months between the arrival of the infant Mr Charlie on Darnley Island and Independence Day was not a "considerable period of time" within the meaning of that expression as used in Moore. Their Honours, in my view, plainly envisaged a period of some years as being required for absorption. The period of approximately five months was, I conclude, plainly insufficient for Mr Charlie, together with his family unit, to have become part of the Australian community by absorption. This is so, in my view, notwithstanding that his parents: (a) intended, as I find, in April 1975 to settle permanently on Darnley Island; (b) did not, as I infer, absent themselves from Darnley Island frequently or for long periods of time; (c) had close family connections with Darnley Island and were connected to the island by Mr Charlie Snr's employment; (d) occupied a home of their own on Darnley Island; and (e) participated, as I infer, in Darnley Island community activities.