Case: Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494
Outcome: followed
order to deal with the applicant's argument, it is necessary to understand the statutory framework within which the decisions under challenge were made. French J, as he then was, summarised the relevant provisions at [20] to [25] (pp 503 505) in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 as follows: The statutory basis for the Minister's decision is to be found in s 501(2) of the Migration Act which provides: '501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.' This is to be read in conjunction with s 501(6) and s 501(7). Relevantly, those subsections provide: '501(6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); ... (7) For the purposes of the character test, a person has a substantial criminal record if: ... (c) the person has been sentenced to a term of imprisonment of 12 months or more; ...' As the present application raises the question whether or not the applicant was the holder of a 'absorbed persons visa' under the Act it is necessary to have regard to the provisions of the Act and Regulations relating to that class of visa. The Migration Act 1958 provided originally for entry into Australia to be regulated by entry permits to be granted by officers of the Department of Immigration (s 6(2)). Such permits could be cancelled by the Minister 'in his absolute discretion' (s 7(1)). The Act also provided for the deportation of aliens and immigrants under various conditions (ss 12 and 22). The Migration Legislation Amendment Act 1989 (Cth) enacted comprehensive amendments which included new provisions for the control of entry into Australia involving entry permits and visas. That system of control was succeeded by a visa-only system introduced by the Migration Reform Act 1992 (Cth) which was passed in November 1992. The relevant provisions of that amending legislation came into operation on 1 September 1994 for a more detailed account of this history see NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 499 at [386] to [393]. Under the Act as it stood prior to 1 September 1994, and by virtue of s 6(1) , an immigrant who entered Australia without an entry permit became a prohibited immigrant. Section 8 , however, relieved from the operation of those provisions an immigrant entering Australia without an entry permit being: '(e) A person who (i) is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or (ii) is included in a class of persons who are for the time being so exempted not being a person in respect of whom a declaration is in force under the next succeeding subsection.' There was an exemption which applied to persons entering Australia from New Zealand who were not required to hold an entry permit. This means that at the time Mr Johnson and his family entered Australia they were not required to hold entry permits and were not prohibited immigrants. The effect of the amendments to the Act which came into operation on 1 September 1994 was that all non-citizens in the migration zone were required to hold a visa. Transitional provisions in relation to New Zealand citizens in Australia were provided for in regulations. Regulation 17 of the Migration Reform (Transitional Provisions) Regulations 1994 provided: '(1) This sub-regulation applies to a non-citizen who: (a) is a New Zealand citizen; and (b) either: (i) was in Australia lawfully immediately before 1 September 1994; or (ii) was, immediately before 1 September 1994 an illegal entrant because of s 20 of the old Act; and (c) is not taken to hold: (i) a transitional visa under Part 2 or 3; or (ii) a Norfolk Island permanent resident visa under regulation 18; or (iii) a sub-class 995 (Diplomatic) Visa under regulation 19; or (iv) a special purpose visa; or (v) an absorbed person visa; and (d) was not the subject of a deportation order immediately before 1 September 1994. (2) A non-citizen to whom this regulation applies is taken to have been granted a special category visa on 1 September 1994.' 25 Section 34 of the Migration Act provides: '34(1) There is a class of permanent visas to remain in, but not re-enter Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom s 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994. (3) Subdivisions AA, AB, AC (other than s 68) , AE and AH do not apply in relation to absorbed person visas.' I respectfully agree with and adopt his Honour's summary. At the time when the applicant and her mother entered Australia, neither of them was required to hold an entry permit and neither of them was a prohibited immigrant. Further, by reason of the amendments to the Act which came into operation on 1 September 1994, if the applicant did not thereby become the holder of an absorbed person visa , she was: taken to have been granted a special category visa on 1 September 1994. Thus, in the case of the applicant, by the operation of the amendments to the Act which came into force on 1 September 1994, she was either: (a) The holder of an absorbed person visa ; or (b) The holder of a special category visa . Despite the inconsistent positions adopted by the applicant, if the applicant did not hold an absorbed person visa at all times from 1 September 1994, then the delegate has purported to cancel a visa of a kind not held by the applicant at the time when the delegate's decision was made. In that event, the delegate will not have exercised the Minister's cancellation power with respect to the visa actually held by the applicant (per French J in Johnson [2004] FCA 137 ; 136 FCR 494 at [30] (pp 505 506). Such a purported exercise of that power in those circumstances would involve jurisdictional error because the delegate will not have addressed the actual question which s 501 of the Act required her to address. A decision infected by jurisdictional error of that kind would be wholly invalid and of no effect. If the hypotheses outlined in [166] above are correct, then the same reasoning would lead to a conclusion that the Tribunal has also committed jurisdictional error when it made its decision on 20 December 2007. It is therefore necessary to determine whether the applicant should be taken to have held an absorbed person visa as at 1 September 1994 and at all times thereafter. In Johnson [2004] FCA 137 ; 136 FCR 494 at [33] to [47] (pp 506 511) French J reviewed a number of authorities which dealt with the statutory criterion "... ceased to be an immigrant before 2 April 1984 ... " (s 34(2)(b) of the Act). At [45] to [47] (pp 510 511), his Honour said: 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. 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: The time that has elapsed since the person's entry into Australia. The existence and timing of the formation of an intention to settle permanently in Australia. The number and duration of absences. Family or other close personal ties in Australia. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. Employment history. Economic ties including property ownership. Contribution to, and participation in, community activities. 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. In the case of a child coming to Australia as part of a family unit it is necessary to apply the judgment about membership of the community to the child's parents or other adult guardians or carers with whom he or she has come and with whom he or she lives. At the time relevant to the present case Mr Johnson was aged nine years. It is therefore necessary to have regard to the evidence about his parents' migration to, and settlement in, this country and their position in April 1984. I also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson [2004] FCA 137 ; 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247 249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32]. A non-citizen who has lawfully entered Australia and has been absorbed into the Australian community ceases to be an immigrant and passes beyond the scope of the immigration power (per French J in Johnson [2004] FCA 137 ; 136 FCR 494 at [44] (p 510)). In this sense, the question of absorption involves the determination of a constitutional fact. In the present case, as I have already said, the applicant came to Australia with her mother on 28 September 1979. By 2 April 1984, the applicant had resided in Australia continuously for approximately four and a half years. By that date, she was almost six years old. I have already referred to the evidence concerning the question of whether the applicant's parents were living together as at September 1979 (as to which see [172] to [178] above). However, the applicant made statements, both to the delegate and to the Tribunal, about certain facts, matters and events which she could remember having taken place in the early years after her arrival in Australia. The broad thrust of that general evidence was that her parents were more or less together in the early years after their arrival in 1979. According to the applicant, the applicant, her parents and her siblings lived as a family unit in those years. The applicant also submitted that I should apply what her Counsel called an implied statutory bar of five years before an immigrant is capable of being absorbed into the Australian community. This submission was founded upon some remarks made by Deane J by way of obiter dicta in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 ; (1981) 54 FLR 334 . In my view, there is no such implied bar. French J in Johnson [2004] FCA 137 ; 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186 ; 54 FLR 334 itself did not expressly agree with the dictum of Deane J. In my view, the application of such a bar, as an inflexible rule, introduces into the consideration of the criterion found in s 34(2)(b) of the Act an unnecessary and inappropriate level of rigidity. For example, it would mean that in every case where the relevant non-citizen had arrived after 2 April 1979, a finding would need to be made that, by reason of this fact alone, absorption had not occurred. In my judgment, as a matter of construction of the Act, no implied probationary period is prescribed. Ground 5 (The Lack of Independent Mind Ground)