Case: Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277
Outcome: considered
The notion of membership of a community with a concomitant right to live in that community was discussed by members of the High Court in Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277. That case concerned the right of the illegitimate son of a Victorian woman to return to Australia from China. His original home was in Victoria but he had been taken at the age of 5 years to China by his father. Although he remained in China for 26 years he was found by a majority of the High Court never to have abandoned his original home. 23 In Minahan Griffith CJ at 289 observed: ... anterior, both in order of thought and in order of time, to the concepts of nationality and of domicil is another, upon which both are founded, and which is, I think, an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority. It follows also that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit. ... At birth he is, in general, entitled to remain in the place where he is born. ... If his parents are then domiciled in some other place, he perhaps acquires a right to go to and remain in that place. But, until the right to remain in or return to his place of birth is lost, it must continue, and he is entitled to regard himself as a member of the community which occupies that place. These principles are self-evident, and do not need the support of authority. 24 O'Connor J at 306 said: What is the scope and purpose of the Act? [ie the Immigration Restriction Act 1901 (Cth)] To prevent the entry into Australia of persons from other countries whom the Legislature has determined ought not for various reasons to be permitted to become members of the Australian community. ... That being so, the foundation in law of the respondent's case is the unimpeachable proposition that a person cannot be an immigrant into the country which is his home. Whether at the time of his landing Australia was the respondent's home, is a question of fact .... 25 Isaacs J adopted a similar approach at 308 where his Honour observed: ... immigration connotes two facts -- the first, that there is an entry into Commonwealth territory; and the second, that the person entering is not in fact at the moment he enters one of the people of the Commonwealth. The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. 31 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.'