Case: Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 
Outcome: discussed
In support of that contention the applicant relied primarily upon the judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494. In that case, Mr Johnson, a citizen of New Zealand came to Australia in 1981 at the age of six. He eventually acquired a lengthy criminal record. On 19 December 2002 the Minister purported to cancel his "special category visa" under s 501(2) of the Act on the basis that it was reasonably suspected that he did not pass the "character test". Mr Johnson submitted that he held an "absorbed person visa" pursuant to s 34 , and not a "special category visa". He submitted that the decision of the Minister to cancel a non-existent visa was therefore affected by jurisdictional error. 29 French J accepted that contention. He held that the Minister's decision to purportedly cancel a visa not held by the applicant was a nullity. 31 French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution . Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 35 It was in the light of these authorities that French J, in Johnson , identified (at [46]) the factors relevant to whether a person has been absorbed into the Australian community (and has therefore "ceased to be an immigrant") as including 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 the join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record." 36 French J noted that this list of factors was plainly not exhaustive. Rather, he said it illustrated "the multi-dimensional character" of the judgment involved. In his Honour's view, all the relevant factors, other than the time that had elapsed since the Johnson family's move to Australia, pointed strongly to the proposition that the family had become part of the Australian community as at 2 April 1984. Although Mr Johnson's criminal record was extensive, it only began in 1991. Accordingly, it had little or no bearing upon whether he had ceased to be an immigrant by April 1984. 37 It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act , and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled.