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 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.
196 I also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson 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].
197 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 136 FCR 494 at [44] (p 510)). In this sense, the question of absorption involves the determination of a constitutional fact.
198 In the present case, as I have already said, the applicant came to Australia with her mother on 28 September 1979.
199 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.
200 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).
201 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.
202 As is apparent from what I have already said at [164] to [167] above, the applicant did not contend to the delegate or before the Tribunal that she was not the holder of an absorbed person visa but rather accepted that she did hold such a visa at all relevant times. The first time that she contended that she did not hold such a visa was in 2008 in the present proceedings.
203 Although I do not think that the applicant's change in position is a ground for not entertaining the submissions which she now makes, her significant and late change of position must be taken into account when I come to evaluate such evidence as there is concerning absorption.
204 The Immigration records in respect of Sophie Toia demonstrate that, upon her arrival in Australia in September 1979, she told Immigration authorities that she intended to migrate to Australia and intended to live with relatives in Brisbane.
205 The Immigration records in September 1979 in respect of John Toia establish that he also told Australian Immigration authorities that he was migrating to Australia, had been employed as a driver/sprayman, intended to work in Australia and intended to live in Queensland (although, as I have already mentioned, not at the same address as Sophie Toia).
206 The Immigration records also establish that, from time to time after 1979, Sophie Toia and John Toia appear to have resumed their relationship although, it is fair to say that those records also indicate that the relationship may well have been an "on again/off again" relationship.
207 Those records demonstrate that, although both Sophie Toia and John Toia left Australia from time to time on brief holiday excursions, they always returned to Australia until 1999 when they moved back to New Zealand. Sophie Toia did not leave Australia at all until August 1987. John Toia left Australia for the first time in May 1991.
208 Those records also show that both Sophie Toia and John Toia left Australia for the last time on 23 July 1999 and did so on the same flight. They travelled to New Zealand on this occasion and did not return to Australia. They both died in 2001 or in early 2004 (the evidence as to this is inconsistent and scant).
209 Immigration records also show that Sophie Toia told Australian Immigration authorities in August 1987 that she was an Australian resident who was visiting New Zealand for a holiday and that she was then married.
210 In mid 1989, Sophie Toia told Australian Immigration authorities that she was an Australian resident who was visiting New Zealand for a holiday and that she was then divorced.
211 In late October 2005, after the applicant had been released from Immigration detention, the applicant's then solicitor informed the Minister by way of formal email communication that both of the applicant's parents had had jobs in Australia and that two of her siblings still lived in Australia. In statements made both to the delegate and to the Tribunal, the applicant gave evidence to the general effect that both her parents had had jobs in Australia in the early years (being a reference to the period soon after the applicant's arrival in Australia in 1979).
212 It is also a fair inference and one which I am prepared to draw from the above material and from statements made by the applicant in a Statutory Declaration made in 2004 that her parents were back together before 1984 (if they had ever been apart) and were cohabiting at a caravan park at Vineyard near Sydney for the greater part of their early years in Australia.
213 I accept the submission made on behalf of the applicant that, for the purposes of my consideration of the criterion set out in s 34(2)(b), in the present case, I should have regard to the status of the applicant's parents. In the period from 28 September 1979 to 2 April 1984, the applicant was a very young minor. She was not quite six years old by 2 April 1984. I am also prepared to infer that, in that period, the applicant lived with her mother and that her father was generally living with them although not all the time. Further, I am entitled to look at facts, matters and events which occurred after 2 April 1984, if those things can rationally cast light on the position as at 2 April 1984 (but not otherwise). In this regard, there is nothing to suggest that the family had not come to Australia to settle permanently. The trips undertaken by the parents are not inconsistent with such a conclusion.
214 I make the following findings:
(1) As at 2 April 1984, approximately four and a half years had elapsed since the arrival of Sophie and John Toia in Australia;
(2) Right from the start, that is to say, from September 1979, both Sophie Toia and John Toia intended to settle in Australia and live here permanently with their children as a family unit. This is demonstrated by the terms of the communications which they made to the relevant Immigration authorities in September 1979 and subsequently; by the fact that both of them did not leave Australia at all for many years after 1979 (eight years in the case of Sophie Toia and almost 12 years in the case of John Toia); by the fact that both were employed in Australia, especially in the early years; and by the fact that Sophie Toia obtained welfare benefits for at least some of the time that she lived here.
(3) There were family members resident in Australia with whom the applicant and her parents were in regular contact during the period September 1979 to 2 April 1984; and
(4) The family seems to have socially interacted with friends who were members of the Australian community.
215 In my view, the above facts and matters are sufficient for me to find that the applicant had been absorbed into the Australian community by 2 April 1984 and thus had, by that date, ceased to be an immigrant within the meaning of s 34(2)(b) of the Act.
216 Counsel for the applicant put a number of matters as matters which she submitted negated the pro-absorption factors. Those matters may be summarised as follows, namely:
(a) The evidence supported a conclusion that Sophie and John Toia had always intended to return to New Zealand and did not intend to settle permanently in Australia;
(b) The evidence justified an inference that the applicant's parents continued to see themselves culturally as Maori;
(c) The abuse which the applicant suffered at the hands of her parents far exceeded that which would otherwise be tolerated by the Australian community;
(d) There was no evidence of any family or other close family ties in Australia;
(e) There was no evidence of any economic ties in Australia such as property ownership; and
(f) Sophie Toia had left Australia after April 1984 for a period greater than 30 days.
217 The evidence did not support the matters noted at pars (a) and (b) of [216] above. The evidence did not support a conclusion that the applicant had suffered any regular significant physical violence or abuse at the hands of her parents before 2 April 1984. The evidence did support a finding that there were family ties in Australia. The movements of Sophie and John Toia in and out of Australia after 1979 were not supportive of a conclusion that the family had not been absorbed into the Australian community. The applicant did have evidentiary support for the proposition that, as at 2 April 1984, her parents did not own property in Australia.
218 In my view, the lack of economic ties to Australia and the brief trips overseas which took place from 1987 onwards are not sufficient to overcome the impact of the findings which I have made at [214] above.
219 Some reliance was also placed on the applicant's subsequent criminal activities. However, these began many years after the relevant date and cannot, in my view, weigh in the balance against a finding of absorption.
220 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 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186; 54 FLR 334itself 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.