Johnson v Minister for Immigration & Multicultural & Indigenous Affairs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT Introduction 1 Silas Timothy Johnson is a New Zealand citizen who came to Australia with his family in 1981 at the age of six. On 19 January 2002, the Minister for Immigration, Multicultural and Indigenous Affairs purported to cancel a special category visa said to be held by him. The cancellation was done pursuant to s 501(2) of the Migration Act 1958 (Cth) on account of criminal offences committed by Mr Johnson. Mr Johnson seeks judicial review of that decision. He says, among other things, that he is the holder of an absorbed person's visa, having ceased to be an immigrant by 2 April 1984 and having remained in this country continuously until 1 September 1994. The cases raises questions about the criteria of absorption into the community which defines a limit upon the immigration power of the Commonwealth. Factual and Procedural History 2 Silas Timothy Johnson is a citizen of New Zealand who was born on 1 February 1975. In 1981, at six years of age, he came to Australia with his parents and four brothers. He and his family have lived in this country since that time. He was educated and brought up in Australia. 3 Mr Johnson accepts that from the time he left school and into his early twenties he '… mixed with the wrong crowd of people and became involved in cannabis and amphetamine use'. He acquired a lengthy criminal record. His record of convictions is as follows: Court Date Count Details Sentence Karratha CC 16/01/91 1 Stealing 15 hrs CSO Roebourne CC 17/01/91 1 Damage 15 hrs CSO Karratha CC 24/06/92 1 Cannabis Possession $50 Roebourne CC 04/03/93 1 Burglary $400 18 years of age Roebourne PS 08/04/93 1 Burglary $300 GB bond 12 mths Roebourne PS 08/04/93 1 On premises w/out lawful excuse $200 GB bond 12 mths Roebourne PS 08/04/93 1 Possess smoking implement GB bond 6 mths conc. Roebourne PS 30/10/96 1 Driving w/out MDL Disq holding MDL 3 mths $100 Roebourne PS 20/11/96 1 Driving w/out MDL Disq holding MDL 3 mths $200 Roebourne PS 20/11/96 1 Using a vehicle contrary to yellow works order $75 Pt Hedland PS 11/12/96 1 False name and address $100 Roebourne PS 17/07/97 1 Possess offensive weapon $100 Roebourne PS 17/07/97 1 Driving w/out MDL Disq holding MDL 9 mths $500 Roebourne PS 17/07/97 1 Unlicensed vehicle $20 Roebourne PS 24/07/97 1 Cannabis poss. $300 With intent to sell Roebourne PS 24/07/97 1 Cannabis poss. A quantity $200 Pt Hedland PS 01/10/97 1 Loitering $150 Perth 29/10/97 1 Cancelled learners permit Sect 48(C)(4) RTA (no court) Roebourne PS 11/12/97 1 Cannabis poss 14 mths imp sent. susp for 2 yrs With intent to sell Roebourne PS 11/12/97 1 Cannabis sell/supply 14 mths imp sent. susp for 2 yrs Karratha DC 04/06/98 1 Attempt to defeat/ pervert course of justice 2 yrs ISO 200 hrs comm work Pt Hedland PS 31/08/98 2 Cannabis poss (1) 8 mths imp (2) 8 mthsconc. Pt Hedland PS 31/08/98 1 Careless driving $1200 MDL disq 18 mths cum. Pt Hedland PS 31/08/98 1 No MDL $150 Pt Hedland PS 31/08/98 1 On prem w/out lawful excuse 8 mths imp Karratha DC 01/12/98 1 Breach of ISO 12 mths impcum Pt Hedland PS 23/08/99 1 Disorderly conduct $100 Sth Hedland PS 20/09/99 1 No MDL Disq holding MDL 2 yrs $1000 Pt Hedland PS 20/09/99 1 False name and address Disq holding MDL 3 mths $75 Sth Hedland PS 22/10/99 2 On prem w/out lawful excuse 9 mths ISO (Adult) 40 hrs comm work Sth Hedland PS 22/01/01 1 Breach of misconduct restraining order $250 Sth Hedland PS 02/03/01 1 Damage 6 mths CBO (adult) 40 hrs comm Work Perth PS 24/07/02 1 On Casino premises when prohibited $250 Perth PS 18/09/02 1 Possess prohibited drug $250 Perth PS 18/09/02 1 Resist arrest $150

4 The acronym 'CBO' refers to a Community Based Order under Pt 9 of the Sentencing Act 1995 ( WA). The term 'ISO' refers to an Intensive Supervision Order under Pt 10 of that Act. That Act also provides that if, while an ISO is in force, the offender commits another offence, the offender may be sentenced again for the offence to which the ISO relates. 5 On 19 January 2002, the Minister for Immigration, Multicultural and Indigenous Affairs cancelled Mr Johnson's visa under subs 501(2) of the Migration Act. This cancellation was done on the basis that the Minister reasonably suspected that Mr Johnson did not pass the character test as defined by s 501(6) of the Act and that he had not satisfied the Minister that he passed the character test. As a result Mr Johnson was taken into immigration custody pursuant to s 196 of the Act. 6 On 17 February 2003, Mr Johnson lodged an application for an order of review of the Minister's decision. Directions were given on 20 March 2003 for filing of documents and affidavits prior to the hearing of the application. On 19 May 2003, Mr Johnson changed solicitors. On 4 July 2003, a memorandum of a proposed substituted application for review and for prerogative and injunctive relief was filed. On 22 July 2003, I ordered Mr Johnson's release upon an interlocutory basis pending the hearing and determination of the application - Johnson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 758. That order was discharged on 25 September 2003 after Mr Johnson was charged with assault occasioning bodily harm and deprivation of liberty in relation to his mother - Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1104. 7 The principal ground of this application was that Mr Johnson is neither immigrant nor alien and therefore falls outside the constitutional limits of the Migration Act in so far as it relates to the cancellation of visas and the removal of persons from Australia. The ground was based upon the decision in Re Patterson; Ex parte Taylor (2001) 207 CLR 391. The majority in that case, Gaudron, McHugh, Kirby and Callinan JJ, overruled an earlier decision of the High Court in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. Gaudron, Kirby and Callinan JJ held in substance that British subjects who migrated to Australia before 1987 were not 'aliens' for constitutional purposes and, if no longer migrants because absorbed into the community, were not liable to deportation. There was however a division in views between the three named justices and McHugh J, which left uncertain the critical date after which a British subject arriving in Australia would always remain an alien notwithstanding absorption into the community. This division was highlighted by the divergence of views expressed by members of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Te and Dang (2002) 193 ALR 37 on the question whether Re Patterson had any, and if so, what ratio decidendi. See also the discussion in Long v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1422. The question was again considered by the High Court in Shaw v Minister for Immigration and Multicultural Affairs, which was heard on 17 June 2003. The substantive hearing of this application, which had been fixed for 18 July 2003, was adjourned to a date to be fixed following the delivery of judgment in Shaw. Judgment in Shaw was delivered on 9 December 2003 - Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. 8 The effect of the decision in Shaw was encapsulated in the joint judgment of Gleeson CJ, Gummow and Hayne JJ at [32]: 'This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law.' Hayden J agreed with the outcome proposed in the joint judgment although he left open the possibility that the aliens power has extended to some British subjects in Australia since 1901 [at 190]. 9 Mr Shaw was born in the United Kingdom to British parents on 27 December 1972. He came to Australia on 17 July 1974 and had not left Australia since that date. He had not applied for Australian citizenship. His visa, which was said to be a Transitional (Permanent) Visa, was cancelled by the Minister under s 501 of the Act on the basis of his 'substantial criminal record'. The effect of Shaw was adverse to the ground of Mr Johnson's application which asserted that he was beyond the reach of the aliens power. No submission to the contrary has been made on his behalf. 10 The present case was brought on for mention on 18 December 2003. The hearing was further adjourned on the basis that the application might be determined on the papers following the filing of any affidavits, statement of agreed facts and submissions. A direction was made that unless one or other of the parties applied to the Court before 11 February 2004 for an oral hearing, judgment would be provisionally listed for 25 February. No application for an oral hearing has been made. The Grounds of the Application 11 The application was amended by leave on 18 December 2003. The grounds of what is now called the Amended Substituted Application for Review and Prerogative and Injunctive Relief are in the following terms: '5. THE GROUNDS OF THE APPLICATION ARE: a) The Respondent has purported to cancel the visa of a Silas Tinessy Johnson and has not cancelled the Applicant's visa and accordingly the continued detention of the Applicant and the intended removal of the Applicant from Australia is unlawful. b) If the Respondent has cancelled the Applicant's visa, then in purporting to apply the provisions of s501 and by making his decision to cancel the Applicant's Visa and in taking the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth. PARTICULARS i. The Applicant was born in New Zealand on 1 February 1975 and at all material times has been a British subject and a citizen of the New Zealand. (sic) ii. The Applicant first arrived in Australia on 26 June 1981 and has thereafter been a permanent resident of Australia and has never left Australia. iii. The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia. iv. The Applicant is not and never has been "an alien" within the meaning of s51(xix) in the Constitution. v. The Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal. vi. The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act. vii. The Decisions made to cancel the Applicant's visa and thereafter to take the Applicant into detention were decisions which were not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent's power did not extend to persons in the position of the Applicant. viii. The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention. c) The Applicant did not hold and was not deemed to hold a Subclass TY-444 Visa. The Applicant held an absorbed persons visa, which has not been cancelled.' Paragraph 5(b) of the application has been overtaken by Shaw's case. This leaves as the only grounds for review those set out in 5(a) and 5(c). 12 Paragraph 6 of the application is not drafted as a ground of the application but asserts: '6. If the Respondent's decision relates to the Applicant the Respondent has failed to provide to the Applicant reasons for his decision, contrary to his obligations to provide reasons pursuant to s501G.' Paragraph 6 could not be advanced as a ground of review since the High Court held in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 that a failure to provide the reasons required by s 501G does not constitute jurisdictional error vitiating the cancellation decision.

Outline of the Departmental Submission Upon Which the Minister Made His Decision 13 The Department of Immigration, Multicultural and Indigenous Affairs prepared an issues paper for consideration by the Minister before he made his decision to cancel the visa. The paper was headed up 'Re Silas Tinessy JOHNSON, born 01 February 1975'. Under the heading 'PERSONAL DETAILS' two sections were set out as follows: 'Personal Particulars of Visa Holder Full Name: Silas Tinessy JOHNSON Aliases: Andre JOHNSTON Silas Timothy JOHNSON Peter STEVENS Date and Place of Birth: 01 February 1975, New Zealand Citizenship: New Zealand Marital Status: Single Sex: Male Immigration History of Visa Holder Date of Entry to Australia: 26 June 1981 Visa Class: 444 - Special Category Visa Expiry Date: N/A Stay Period of Visa: Indefinite Previous Absences from Australia: Depart Arrive

• - Mr JOHNSON has not left Australia since he arrived on 26 June 1981. Previous visa cancellations (including s 20 determinations and entry permit terminations before 1 September 1994): Nil' 14 The submission then referred to the grounds upon which the Minister might cancel Mr Johnson's visa. It summarised the provisions of s 501 of the Act and then went on: '[5] On 11 December 1997, Mr JOHNSON was sentenced in the Roebourne Court of Petty Sessions for the following s 501(7)(c) applicable offences: . One count of the possession of cannabis with the intent to sell, imprisonment for 14 months. Sentence suspended for two (2) years. . One count cannabis sell/supply, imprisonment for 14 months. Sentence suspended for two (2) years. [6] On 1 December 1998, Mr JOHNSON was sentenced by the District Court of Western Australia in Karratha for the following s 501(7)(c) applicable offence: . One (1) charge of attempting to pervert course of justice, imprisonment for 12 (12) months. [7] It is open for you to find that Mr JOHNSON has a substantial criminal record under s 501(7)(c).' 15 The criminal history was explained further in the document. Mr Johnson had been convicted and sentenced in the Roebourne Court of Petty Sessions on 11 December 1997 on two counts of possession of cannabis with intent to sell or supply. He was sentenced on each count to fourteen months imprisonment which was suspended for two years. On 4 June 1998 he pleaded guilty in the District Court at Karratha to a charge of attempting to pervert the course of justice and was subjected to an Intensive Supervision Order for a period of twenty-four months together with 200 hours of community service work. On 31 August 1998 at the Port Hedland Court of Petty Sessions he was convicted on his own plea of guilty of being unlawfully on premises and in possession of cannabis. This amounted to a breach of the Intensive Supervision Order so he became liable to be sentenced for the attempt to pervert the course of justice in respect of which that order was made. As a result he was sentenced on 1 December 1998 to twelve months imprisonment. The submission made to the Minister was that it was open to him to find that there was a reasonable suspicion that Mr Johnson did not pass the character test due to the fact that he had been sentenced to a term of imprisonment of twelve months or more. 16 Mr Johnson's 'official criminal history' was attached as Annexure A to the issues document. That history named him as 'Silas Johnson also known, inter alia, as Silas Timothy Johnson'. The word 'Tinessy' did not appear in that record. 17 The ministerial submission referred to factors affecting the exercise of the discretion whether to cancel Mr Johnson's visa. It reported that Mr Johnson had been given a notice on 8 November 2002 of the departmental intention to consider cancellation of his visa under s 501. A copy of that notice was attached as Annexure C to the submission. It had been sent to 'Mr Silas Johnson'. It invited Mr Johnson to make a submission on the question of the cancellation of his visa. He responded to that invitation in writing on 28 November 2002. A copy of his response was attached as Annexure B to the ministerial submission. It was a statutory declaration purporting to be made by 'Silas Timothy Johnson'. There is no suggestion that the document was not genuine. Other discretionary considerations were addressed in the submission which are not relevant for present purposes. 18 In Part E of the submission decisional options were set out for the Minister. The option selected effected the cancellation of the visa. It was in the following terms: 'Part E Decision I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my direction under s 499 of that Act and Mr Johnson's comments and have decided that ... I reasonably suspect that Mr Johnson does not pass the character test and Mr Johnson has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' This was signed by the Minister and dated 19 January 2002. 19 Also attached to the submission were the following documents:
  1. Character references which referred to Mr Johnson as Silas Johnson or Silas Timothy Johnson. There was also a reference from his mother by way of a statutory declaration.
  2. The transcript of his sentencing in the District Court of Western Australia on 1 December 1998 which referred to him as Silas Timothy Johnson. So too did the transcript of sentencing on 14 December 1997 which was also attached. Statutory Framework 20 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; …' 21 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. 22 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]. 23 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. 24 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:

(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

(ii) a Norfolk Island permanent resident visa under regulation 18; or

(iii) a sub-class 995 (Diplomatic) Visa under regulation 19; or

(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.' Ground (a) - Incorrect Naming of the Applicant 26 The use of the middle name 'Tinessy' in the departmental submission to the Minister was incorrect. This is abundantly clear from the Annexure and the detail of the issues paper. It is not in dispute that the applicant is the person with whom the paper was concerned. He participated in the decision-making processes by his response and the materials lodged on his behalf. He used his correct name in formulating that response and his correct name appeared in those materials and also in sentencing transcripts which were relied upon by the Department. 27 The Minister's power was therefore, in my opinion, exercised in respect of this applicant even though he was misnamed at the beginning of the issues paper. The error is unexplained although it has the character of an error in transcription from oral dictation. Whether that be so or not, the power was exercised in respect of this applicant and it cannot be said that the error in any way affected the exercise of the power. It is not an error going to jurisdiction in the sense necessary to overcome the operation of s 474 of the Migration Act. This ground of review cannot succeed. Ground (c) - The Nature of the Visa Cancelled - The Issue 28 The departmental submission to the Minister asserted at the outset that the applicant was the holder of a 444 - Special Category Visa. 29 The scheme of the legislation referred to earlier is such that if, by 2 April 1984, the applicant had ceased to be an immigrant, and if he had not left Australia after that date, then he was taken to have been granted a permanent visa in the nature of an absorbed person visa on 1 September 1994. The deemed grant of a temporary visa in the nature of a Special Category Visa pursuant to the Migration Reform (Transitional Provisions) Regulations 1994 would only take effect in the event that the applicant did not hold an absorbed person visa - see Reg 17(1)(c)(v). 30 If the Minister purported to cancel a visa of a kind not held by the applicant, then he would not, in my opinion, have exercised his power with respect to the visa actually held. This is not a mere error of nomenclature which does not affect the subject matter of the ministerial decision. In this respect it is to be contrasted with the misnaming of the applicant discussed under the preceding ground. An error of the kind asserted in ground (c) is a matter of substance. The Minister would purportedly be exercising his power under s 501 with respect to one subject matter (ie a temporary special category visa) when in fact the relevant visa was a permanent absorbed person visa. That would be a matter of jurisdictional error for the Minister would not be addressing the question which s 501 requires him to address. That is to say that he would not be addressing the question whether a permanent absorbed person's visa held by the applicant should be cancelled. It may also be observed that the weight to be given to discretionary factors might well be different according to whether the Minister's decision concerned a temporary visa holder or a permanent visa holder. But that consideration does not go to the question whether there was jurisdictional error. 31 In Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229, the Full Court of the Federal Court dismissed an appeal against a decision of a single judge that the Minister's cancellation of a visa held by Mr Schwart was invalid. The Minister had purported to cancel a sub-item 155-Five Year Resident Return Visa. Mr Schwart was in fact the holder of a Transitional (Permanent) Visa. In dismissing the Minister's appeal the Court rejected a submission that, on a fair reading of the issues paper on which he acted, the Minister's decision was to cancel the only visa held by the appellant. The Court said (at [33]): 'It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a 'transitional (permanent) visa' that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501 there should be no doubt that that is what he was doing.' The Court went on to say (at [34]): 'The Minister did not, by the Memorandum, cancel the visa held by the respondent. Therefore he is still a lawful non-citizen and was entitled to a declaration to that effect.' 32 The written submissions filed by counsel for the Minister turned upon the proposition that the applicant was in truth the holder of a Special Category Visa and not the holder of an absorbed person visa. That in turn depended upon the question whether or not Mr Johnson had ceased to be an immigrant as at 1 April 1984. There was evidence, by way of affidavits filed on his behalf, which went to that issue. Before turning to that evidence, which was not controverted, it is necessary to consider the criteria by which a judgment is to be made about whether Mr Johnson had ceased to be an immigrant on or before 1 April 1984. Ground (c) - The Nature of the Visa Cancelled - The Criteria for Determining Immigrant Status 33 The conditions for the deemed grant of an absorbed person visa include the requirement that the grantee be a non-citizen in the migration zone who had 'ceased to be an immigrant before 2 April 1984'. This is a statutory criterion which imports a constitutional question. That is - under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution. Its resolution in a particular case involves a question of constitutional fact - Re Patterson at 472 (Gummow and Hayne JJ). 34 The meaning of 'immigration' was considered in Potter v Minahan (1908) 7 CLR 277 which concerned the return to Australia, after an absence of 26 years, of the Australian born child of a Chinese man and an Australian woman. The returnee had left Australia with his father at age 5. He was held not to be an 'immigrant' within the meaning of the Immigration Restriction Act 1901 (Cth). Central to the concept of immigration as explained by Griffith CJ in that case was the notion of membership of a community. A person not outlawed from human society was seen as 'entitled to enter some community' (at 289). Birth into a community would be a sufficient condition of membership and could confer an entitlement to remain in it '... until excluded by some competent authority'. Barton J also spoke in terms of membership of a community (at 294). It was a feature of the criteria of immigrant status discussed by O'Connor J (at 305) and explicitly in the dissenting judgment of Isaacs J who said (at 308): 'The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or not at that time a constituent part of the community known as the Australian people.' 35 In relation to an Australian born person seeking re-entry Isaacs J put the question thus (at 309): 'There is not, in my opinion, any proper test but this practical one, viz, whether the whole of the facts show that at the moment of entry the person desiring to be admitted is fairly to be considered as one of the people of the Commonwealth and whether, not withstanding any personal absence from Australia, he can justly and in substance claim to regard this country as a place of habitation or general residence which he had never abandoned.' On the other hand, when speaking of a person whose original home was outside Australia and who had migrated to this country, he said: 'Once an immigrant always an immigrant.' R v McFarlane; Ex parte Flanagan and O'Kelly (1933) 32 CLR 518 at 555. 36 The view that immigrants are always immigrants for constitutional purposes was overtaken by the decision in Ex parte Walsh and Johnson (1925) 37 CLR 36, in which Knox CJ, Higgins and Starke JJ held that the immigration power does not authorise the parliament to legislate with respect to persons who, having immigrated to Australia, have made their permanent home here and have become members of the Australian community. Starke J referred to the identification by Isaacs J, in Potter v Minahan, of the ultimate fact to be reached as the test for whether a person is an immigrant. He said (at 137): 'Now here, I think, is foreshadowed a clear principle, namely, that those who "originally associated themselves together to form" the Commonwealth and those who are "afterwards admitted to membership" cannot thereafter, upon entering, or crossing the boundary of, Australia, from abroad, be regarded as immigrating into it unless in the meantime they have in fact abandoned their membership. They have never been within, or else have passed beyond, the range of the power: it has never operated, or else has become exhausted.' See also Higgins J at 109. 37 This is not to say that the question of absorption cannot be affected by legislation. The parliament can make laws which would prevent a person who migrates to Australia from being accepted into the community except under certain circumstances or conditions - O'Keefe v Calwell (1949) 77 CLR 261 at 276-277 (Latham CJ), see also Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Forbes; Ex parte Kwan Lee (1971) 124 CLR 168, especially at 173-174 (Barwick CJ). There has been a number of decisions of the Federal Court to the effect that the statutory designation of a person as a 'prohibited immigrant' or an 'unlawful non-citizen' could prevent his or her absorption into the Australian community - Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566; Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577; Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590; Chee v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 542 and Sharma v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 586. These cases reflect the broad principle that absorption may be precluded by community non-acceptance which can be effected by statute, eg, by the limitation imposed by temporary entry permits and the creation of such classifications as 'prohibited immigrant' or 'unlawful non-citizen', albeit the latter is related to the current Act's reliance upon the aliens power. 38 The question whether a child immigrant may be absorbed into the Australian community was touched upon in R v Director General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369. It arose in the context of a consideration of the Immigration (Guardianship of Children) Act 1946 (Cth), s 6 of which confers upon the Minister for Immigration the guardianship of unaccompanied immigrant children. The Court held that the section does not apply to children who, by absorption into the Australian community have ceased to be immigrants. Mason J (at 342) and Jacobs J (at 385) seem to have contemplated the possibility that a child could be absorbed into and become a member of the Australian community before reaching adulthood. McTiernan J agreed with their reasons. See also Gibbs J (at 374). Barwick CJ, on the other hand, while coming to the same conclusion about s 6 of the Act, said (at 372-373): 'It is evident that a person under the age of 21 may not chose to join the Australian community till he or she is 21: or having intended at an earlier stage to join the community, may not effectively do so until attaining the age of 21.' 39 The observations made in these judgments were directed to unaccompanied immigrant children. Stephen J said (at 378): 'Without legal capacity I would doubt the ability to be absorbed, at least in the case of an "immigrant child" as defined who does not arrive in Australia to live with his parents or an adult relative and for whom the opportunity, which may perhaps be open to others, of acquiring membership of the community as part of a family unit is thus foreclosed. Such a child is rather in the position of the orphan minor who, for want of parents, cannot, during minority, effect a change in what was his domicile at his parents' death- Dicey and Morras, Conflict of Laws, 9th ed (1973) p 119 - whereas it may be that in other cases the absorption of the parents will result in the child's absorption.' 40 Re Patterson; Ex parte Taylor concerned the extent of the naturalisation and aliens power under s 51(xix). Mr Taylor, who was seeking constitutional writs in that case and who faced deportation on account of criminal convictions, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 at the age of 6 on his father's passport and had been educated and made his home in Australia. 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 was completely absorbed into the community prior to April 1984, that being one of the requisites for an absorbed person visa' (at 407). In their joint judgment, Gummow and Hayne JJ, said (at 444-445): 'The prosecutor also urges that long ago he became absorbed into the Australian community, in the sense of the established but 'very vague conception' found in decisions of this Court limiting the reach of the immigration and emigration power.' Their Honours referred to the doctrine of absorption thus: 'The doctrine of absorption was devised as a limitation upon the power to eject those otherwise reached by the immigration power, persons who might have been British subjects.' They rejected any attempt to confine the aliens power by reference to absorption. After citing Potter v Minahan and, in particular, the test of absorption stated by Isaacs J, their Honours said (at 472-473): 'There is no reason to conflate the criteria by which there is gauged the scope of the powers of the Parliament on the one hand with respect to naturalisation and aliens, and on the other with respect to immigration and emigration. The distinct considerations which led to the inclusion of the two heads of power in s 51 suggest otherwise. Further, the notion of absorption into the Australian community is one which, the decisions of the Court with respect to the immigration power show, is not easy of application and turns into constitutional facts many details of the lives of individuals.' 41 Callinan J (at 515) referred to Mr Taylor's submission that by the date of the Minister's decision he had lost his status as an immigrant by effluxion of time and absorption into the Australian community. Relying upon Ex parte Walsh and Johnson; In Re Yates he said: 'The prosecutor's submission on this aspect must be accepted. Indeed, ultimately it was conceded by the respondent to be correct. The prosecutor has been absorbed into the community. He is beyond the reach of the immigration power conferred upon the parliament by the Constitution.' 42 Patterson was overruled in Shaw v Minister for Immigration and Multicultural Affairs in relation to the time from which British subjects entering into Australiawould remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Patterson's case, the question of absorption was not in issue. However, Kirby J who dissented in Shaw did make some observations in relation to child immigration. Referring back to Mr Taylor in Patterson's case he said (at 173 [119]): 'Because he arrived with his parents as an infant, and a member of a migrating family unit, he was treated for the purposes of the "immigration" power as passing, in the same way as his parents had, beyond the entitlement of the parliament to rely on that power to remove him. The notion that, for constitutional purposes, parents had completed the process of "immigration" but that their children did not, is one that was not even argued in re Patterson. That was because it is unpersuasive. Parents and child in both cases engaged in a single "process" of immigration. When that process was completed for the parents, it was completed for the child.' His Honour said that any differentiation of the position of children by postponement of the conclusion of their process of 'immigration' during their minority would run counter to the realities of family immigration as a process and to the actual treatment of such a child on arrival in Australia as having a nationality status derivative from his parents. His Honour also saw such differentiation as inconsistent with the approach to the status of children as immigrants explained in Henry's case. 43 Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2000) 193 ALR 37. However, Mr Shaw had been living in Australia for more than 12 years before his first conviction which occurred when he was still a child. Callinan J said: 'In my view the applicant had been absorbed into the Australian community by the time that he came to the notice of the criminal courts. And, in any event, I would not regard that first conviction, occurring as it did when he was so young, as putting him beyond the community of ordinary Australians. I reject the respondent's argument that a person cannot be absorbed into the Australian community until he has attained adulthood. Absorption may not necessarily be a matter of choice. It is better gauged by actual presence and conduct.' 44 In my opinion it is reasonably settled law that, absent some statutory bar such as a temporary entry visa or classification as an unlawful non-citizen and perhaps also lack of legal capacity (in the case of an unaccompanied minor), 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. 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. 47 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 9 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. Ground (c) - The Nature of the Visa Cancelled - Whether the Applicant Had Ceased to be an Immigrant in April 1984 48 The applicant's father, Peter Johnson, in an affidavit sworn on 23 January 2004, set out aspects of his family history in relation to their move from New Zealand to Australia. Before coming to live in Australia Mr Johnson Snr had been working as a boilermaker in New Zealand. He had been told by workmates and family members that there was a shortage of boilermakers in Australia and that the pay was much better. He discussed migration with his wife. At the time they had four young children. He decided to go to Australia alone and establish himself with a job and send money back to his wife for her and the children. He arrived in Australia on 7 October 1980. He stayed for a short time with his brother-in-law and his brother-in-law's family at Nanango Caravan Park near the Tarong Power Station out of Brisbane. He obtained employment as a carpenter's labourer with a construction firm working at the power station and started to save money to bring his family over. The wages were much better than in New Zealand. He decided to make his permanent home in Australia. 49 Mr Johnson Snr returned to New Zealand in January 1981 to collect his two eldest sons, Parata and Hemi. He wanted to get them started in the Nanango High school so that their schooling would not be disrupted by a mid-year change. Shortly after he returned from New Zealand to Australia in February 1981. Mr Johnson Snr was offered a position by his employer as a site boiler maker at the Tarong Power Station. About this time, he said, rugby league training began and he started playing for Nanango. He trained two nights a week and his sons went with him and were involved as well. They played for the Nanango Under 13's and both were represented in the South Burnet Representative team. His youngest son was picked for the South East Queensland team. They travelled widely within Queensland as members or supporters of various rugby league teams that they were involved in. 50 Mr Johnson Snr and his wife spoke regularly and corresponded about the best time for her and the other children to join him and the two elder sons in Queensland. They decided to wait until the next school break. His wife, Kathleen, arrived in Australia on 26 June 1981 with their two younger sons, Andre and Silas. She also brought over her eldest son, Mr Johnson Snr's stepson, Adam, to live with them. They enrolled Andre and Silas at the Nanango Primary School. The boys fitted into their school life with no difficulty particularly as they had older brothers and cousins already going to the adjoining Nanango High School. Andre and Silas became involved in playing rugby league at Nanango. 51 In 1982, when Mr Johnson Snr's contract was coming to an end he secured employment with another firm at a factory in Nanango where he worked on a contract to fabricate a dragline for the power station. In that year he began coaching Under 9's at rugby league. This involved driving out of Nanango and into the bush to collect the boys who were in the squad but who lived out of town. The social life of the town very much revolved around the sporting activities of adults and children. He and his wife fully participated in those activities. As time passed, they rented a house in Nanango. 52 In late 1982, after the completion of the dragline contract, Mr Johnson Snr went back to the Tarong Power Station to work as a pipe welder for Evans Deakin. That work continued until early 1985. In 1983, he bought musical equipment and formed a band with other Nanango locals. In that year he and his family moved to a farm house in Upper Yarraman. Andre and Silas attended Yarraman Primary School and the older boys caught a bus so they could continue at Nanango High School. Mrs Johnson started playing soccer for the Nanango Womens team and Andre and Silas played soccer for Yarraman school. Mr Johnson Snr played rugby union for Blackbutt for a period until arthritis in his right hip worsened. 53 By early to mid 1984, Mr Johnson Snr had lived for three and a half years in Nanango or nearby Yarraman and all his family had lived there for almost three years. He had been effectively in continuous employment since his arrival in October 1980. By 1984 he was well regarded as a skilled metal worker by local manufacturers and construction contractors in the Nanango and the Tarong Power Station. The entire family took an active part in the social life of the small towns of Nanango and Yarraman and surrounding districts. According to Mr Johnson they felt that they knew everybody in the towns and were friends with them. He said that they were fully part of the community and that by and before 1 April 1984 they were fully absorbed into and were part of it. 54 Mr Johnson said that at least by the end of 1981 and, from his point of view even earlier, they had made Australia their permanent home and had no thoughts of returning to New Zealand. Indeed they did not do so. Silas has never returned to New Zealand. None of the other children have returned even for a visit to New Zealand. Mrs Johnson went back to New Zealand for a brief visit in 1995 and she and her husband both visited New Zealand together in early 2003 when an aunt died. 55 Following the end of his contract with Evans Deakin in 1985, Mr Johnson Snr worked for a short period in New South Wales and then returned to Queensland and worked for Evans Deakin in Brisbane. In October 1987, he obtained employment in connection with the construction of the Liquified Natural Gas plant near Karratha in Western Australia. The family moved to Western Australia where they have lived every since. They purchased their first property in Jaeger Street, Roebourne in 1991 and their present accommodation in Port Hedland in 1995. 56 Neither Mr Johnson nor his wife have ever had trouble with the law. He said in his affidavit that they have brought their children up strictly and, in retrospect, believe they might have made life too difficult for their son Silas who rebelled against their beliefs (they are Jehovah's Witnesses) and was easily led by children of his own age but who were more mature than him as a teenager and young adult in Karratha and Roebourne in the early and mid 1990s. He said that to his knowledge Silas has never expressed any interest in or wish to return to New Zealand but has grown up believing Australia was his home. 57 Silas Johnson swore a number of affidavits. In his affidavit sworn 10 July 2003 he said, inter alia, that from the time he and his family arrived in Australia he regarded this country as his permanent home. He said he has never been back to New Zealand and has had no contact with anyone there. He has lived in Australia for the last twenty two years, has been educated and worked here and believes that he is fully absorbed into the Australian community and was so absorbed from shortly after his arrival in Australia. 58 He accepted that from the time when he left school until his early twenties he mixed with the wrong crowd of people and became involved in cannabis and amphetamine use. He said he was brought up as a Jehovah's Witness and at the time rebelled against the teachings and beliefs of his parents. He referred to his criminal history and to his undertaking of a drug counselling course at the end of 2001. A subsequent affidavit, sworn 16 July 2003, was by way of correction of the early affidavit in an immaterial particular going to the question of interlocutory relief. 59 I accept the affidavit evidence tendered on behalf of Mr Johnson Snr in so far as it relates to the absorption question as at April 1984. On the basis of that evidence, I make the following findings:

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 18 December 2003 Last Written Submission: 12 February 2004