Ground 1
25 Put simply, ground 1 contends that the applicant was never the holder of an absorbed person visa and, accordingly, the Minister's decision to cancel that visa was a nullity.
26 The only issue to be considered in relation to this ground is whether the applicant had "ceased to be an immigrant", within the meaning of that expression in s 34(2)(b) of the Act, before 2 April 1984. If, as the applicant submitted, he had not ceased to be an immigrant as at that date, he would not be taken to have been granted an absorbed person visa on 1 September 1994 (the date when the former system of entry permits came to an end, and was replaced by the new visa system).
27 The applicant submitted that he had not "ceased to be an immigrant" because he had, as at 2 April 1984, accumulated a substantial number of convictions for serious offences which were antithetical to his having been absorbed into the community.
28 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) 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.
30 His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely 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. He referred to Potter v Minahan (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan (1923) 32 CLR 518; Ex parte Walsh; Re Yates (1925) 37 CLR 36; O'Keefe v Calwell (1949) 77 CLR 261; Koon Wing Lau v Calwell (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
31 French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor (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".
32 In Ex parte Taylor the High Court held, by a four to three majority, that Mr Taylor, as a British subject, was not an alien but a subject of the Queen of Australia. As such the power to cancel a visa under s 501(3) of the Act could not apply to him.
33 Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor, the question of absorption was not an issue in Shaw.
34 Importantly for present purposes, in Shaw 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 (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians.
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) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled.
38 In order to fully appreciate the nature of the applicant's submission, it is necessary to set out in some detail Mr Moore's criminal history. It appears that at some stage, probably in 1981, he was convicted in the Children's Court in Melbourne on six counts of theft of a motor vehicle, three counts of unlicensed driving, five counts of burglary, and nine counts of theft. He was also convicted of one count of discharging a missile with intent to injure and one count of setting off fireworks without permission. The exact date of his convictions before the Children's Court is unclear, having been blanked out of the criminal history report set out in the application book. However, it is clear that Mr Moore appealed to the County Court from whatever orders were made in the Children's Court and was sentenced by the County Court on 22 January 1982 to 18 months' probation.
39 The criminal history report then records that on 13 January 1984 he was fined $100, in default five days youth training centre, on one charge of using indecent language in a public place. Finally, on 27 February 1984 he was dealt with at the Oakleigh Magistrates Court on charges of assault with a weapon, assault occasioning actual bodily harm, unlawful assault and wilful damage. He was fined a total of $600.
40 The applicant built up a lengthy criminal history after 1984. However, that is of only limited relevance when it comes to considering whether he had "ceased to be an immigrant" within the meaning of that expression in s 34(2)(b) as at 2 April 1984.
41 It is somewhat ironic that the applicant contends that his criminal record was so bad, as at 2 April 1984, that he had not been absorbed into the Australian community, while the Minister contends that, in reality, the offences which he had committed by that date were by no means so serious as to warrant that conclusion. The positions normally taken by the applicant and the Minister in cases involving cancellation of visas on character grounds are quite the reverse.
42 In any event, the Minister has proceeded throughout upon the basis that Mr Moore had an absorbed person visa as at 1 September 1994, having satisfied the requirements of s 34(2)(b) of the Act. That was the stance initially taken by the applicant as well. However, he no longer maintains that position.
43 In effect the only basis put forward in support of the applicant's contention that he had not ceased to be an immigrant as at 2 April 1984, and did not qualify for an absorbed person visa, was his criminal record as at that date. Whatever may be the merits, or otherwise, of treating a criminal record as an indication that a person has not been absorbed into the community, I am satisfied that Mr Moore's record, at the relevant time, was by no means so bad as to lead to that conclusion. He was, after all, only 15 years old when the County Court matters were dealt with, and still only 17 at the time of the proceedings in the Oakleigh Magistrates Court. None of the offences led to a custodial sentence. They do not strike me as having been so serious as to warrant the conclusion that the applicant had not ceased to be an immigrant by 2 April 1984.
44 I therefore reject the applicant's contention that he does not now, and never has, held an absorbed person visa. It follows that the Minister's decision to cancel that visa operates by law, pursuant to s 501F(3) of the Act, to cancel also his transitional (permanent) visa.