Unlawful? Maybe Not: Absorbed Persons Visas

• on 2 April 1984 were in Australia
• had become 'absorbed' into the Australian community by 2 April 1984
• have not left Australia since then and
• immediately before 1 September 1994 were not subject to s20 of the then Act ('the old Act') (s20 of the old Act dealt with persons who evaded officers to enter Australia or who provided incorrect information or bogus documents

Furthermore, an absorbed person visa entitles the holder to remain in, but not re-enter Australia and is a permanent visa. Note:

• a person does not have to come to the department's attention to hold an absorbed person visa and
• an absorbed person visa does not need to be evidenced as it is granted by operation of law, that is an absorbed person visa holder may not have a visa label or port and date stamp in their passport
  

Section 34 provides for the grant to certain persons, by operation of law, on 1 September 1994, of a permanent visa, called an 'absorbed person visa'.

The visa will be taken to have been granted to non-citizens in the migration zone who meet the criteria set out in that provision.

'Absorption' is a constitutional doctrine developed by the High Court in the interpretation of paragraph 51(27) of the Commonwealth Constitution (the 'immigration and emigration' power).

Generally, all persons entering Australia (whether permanently or temporarily) entered as 'immigrants'. However, the doctrine held that certain persons who arrived in Australia did not remain 'immigrants' for all time.

At some point certain persons were 'absorbed' into the Australian community and ceased to be 'immigrants'. When this occurred, those persons moved outside those provisions of the Migration Act 1958 ('the Act') which at that time referred to immigrants. For example, section 6 of the Act at that time stated that 'an immigrant' who entered Australia without an entry permit became 'a prohibited immigrant'.

Thus, if the person was not 'an immigrant', section 6 did not apply and the person could not have become a prohibited immigrant under that section.

Because of problems caused by the absorption doctrine for the administration of the Act, the constitutional basis of the Act was shifted with effect on and from 2 April 1984 (pursuant to the Migration Amendment Act 1983 ('the 1983 Act')) so that the Act was then based on paragraph 51(19) of the Commonwealth Constitution (the 'naturalisation and aliens' power).

The Act from then on referred to non-citizens (of Australia) rather than immigrants.

Non-citizens, unlike 'immigrants' cannot cease to be non-citizens by being absorbed into the Australian community. The only way non-citizens cease to be non-citizens is by acquiring Australian citizenship.

As a matter of departmental policy, it was considered that persons who, prior to 2 April 1984, had become absorbed should not become unlawful if they remained continuously in Australia.

Because the 1983 Act had made certain absorbed persons unlawful, section 16 of the Migration Laws Amendment Act (No.2) 1992 was enacted and provided that the amendments made by the 1983 Act did not apply and had never applied to persons who had already been absorbed.

Prior to 1 September 1994, the effect of the doctrine is that there remained a number of absorbed persons who were lawfully in Australia as permanent residents but who were not the holders of entry permits. Section 34 of the Act, (from 1 September 1994), causes such persons to hold a permanent visa.

The 'absorbed person visa' is a visa to remain in, but not to re-enter, Australia. If an absorbed person wishes to depart Australia after 1 September 1994, he or she will have the same entitlement to a resident return visa as any other permanent visa holder.

The general principles of absorption will apply whether a person entered Australia under the Immigration Act 1901 ('the 1901 Act' which the Migration Act 1958 repealed) or under the Migration Act 1958 ('the 1958 Act') which commenced on 1 June 1959.

The visa is granted by operation of law.

Although there is no decision to be made whether to grant or refuse the visa, there is still a need for a finding of fact to be made that a person satisfies each of the requirements set out in subsection 34(2).

If a finding is made by the Immigration Department that a person satisfies every one of those requirements, then that person should be regarding as holding an absorbed person visa.

One of the more difficult questions in this process is whether paragraph 34(2)(b) is met. That is, whether the person ceased to be an immigrant (was absorbed) prior to 2 April 1984.

This would require an investigation and assessment of the facts of individual cases as they come to the attention of the Department.

Subsection 34(2) sets out the legal requirements for a person to have been taken to have been granted an 'absorbed person visa'. The person must be in the migration zone and meet all of the specified requirements which are explained in detail below.

'(a) on 2 April 1984 was in Australia; and'

This is a matter of fact.

'(b) before that date (i.e. 2 April 1984), had ceased to be an immigrant; and'

The question of whether a person has become absorbed into the Australian community is essentially a question of fact but subject to legal bars (see below). It requires evidence both that the immigrant has made the community his or her own and evidence of a community willingness to accept him or her. Consideration of any of these matters only relates to the person's circumstances before the commencement of the Act as amended by the 1983 Act (i.e. 2 April 1984) because after that date, the concept of absorption became irrelevant to the operation of the Act (because it no longer referred to 'immigrants').

Factors identified by the Courts as indicators of absorption, include whether the person:

• married (and/or had a longstanding stable relationship) with an Australian citizen or Australian permanent resident;
• established a permanent home;
• had children born and educated in Australia;
• obtained and retained remunerative employment;
• purchased property and acquired significant assets;
• made efforts to become part of the community (learning to speak English/made enquiries about citizenship); and
• abided by the law.
  

Another factor identified is the length of the person's residence in Australia and whether any departure from Australia was only for a temporary purpose, such as an overseas visit or to study (and the person returned before 2 April 1984).

Another factor identified is the length of the person's residence in Australia and whether any departure from Australia, prior to the critical date of 2 April 1984, was only for a temporary purpose, such as an overseas visit or to study (and the person returned before 2 April 1984).

The relevance of this factor was, as indicated above that section 6 of the Act as it was before 2 April 1984, only operated in relation to a person who was 'an immigrant'.

Therefore, if the person through absorption ceased to be an 'immigrant' and did not lose his or her absorbed status before that person's return to Australia, section 6 would not apply - see below. This factor would also apply in relation to persons who held permanent entry permits.

It should be noted that none of the factors is by itself decisive. It is a matter of taking all the matters into account and assessing whether, on balance, the person has been absorbed.

Several circumstances in which the Courts considered that a person could not become absorbed while they held a certain status include:

1. while the person held a temporary entry permit;
2. while the person was a prohibited immigrant;
3. abandonment of membership of the Australian community;
4. children.

1) While the person held a temporary entry permit

If the person's entry or further stay was authorised for a specified period only, the person could not become absorbed during that period.

Under the 1958 Act, this authority to stay temporarily was indicated by the person being the holder of a temporary entry permit (TEP).

Prior to the 1958 Act, persons wishing to enter Australia temporarily, who would otherwise have been prohibited immigrants, were granted a 'certificate of exemption'. Under the transitional provisions, any current certificates of exemption became temporary entry permits.

Any person who held such a 'transitional' TEP would be subject to the bar outlined above. However, where those certificates of exemption expired or were cancelled prior to the 1958 Act, this bar on absorption might not have applied because the person did not automatically become a prohibited immigrant under the pre-1958 Act (see below.)

2) The person could not be absorbed while a prohibited immigrant

(a) the person was a prohibited immigrant pursuant to the 1958 Act

Pursuant to the 1958 Act, a person could become a prohibited immigrant and therefore unable to become absorbed while holding that status under the following provisions:

• section 6 (entry without an entry permit);
• section 7 (expiry or cancellation of a temporary entry permit);
• section 8 (a person who ordinarily would have been exempt from the entry permit requirement but ceased to be an exempt person); or
• section 16 (evading an officer to enter Australia or obtaining entry through forged documents or documents obtained by false representations or because the person had a prescribed health problem or a criminal record)
  

A person did not lose the status of prohibited immigrant unless they were granted an entry permit (which in the case of section 16 had to be appropriately endorsed). The only exception was that provided for by subsection 7(4) of the Act which is discussed below.

Pursuant to subsection 7(4) of the 1958 Act, (before the Act was amended in 1983), a person could also cease to be a prohibited immigrant five years after the cancellation or expiry of the last TEP held, unless at the end of that period, a valid deportation order was in force*.

(The decision of Hock Boon Ang v. MIEA (unreported) NG473 of 1993, 4 March 1994, Wilcox J., means that an assessment will need to be made whether the deportation order is a valid one. (* Note that this statutory 5 year period under subsection 7(4) only applies where a TEP was held. It is not applicable to other cases.)

A person did not cease to be an immigrant at the end of that five year period simply because of the expiry of that period. The person merely ceased to be liable to deportation as a prohibited immigrant.

Whether the person also became absorbed is still a question of fact guided by the factors above (The Queen v Forbes and another ex parte Kwok Kwan Lee (1971) 124 CLR 168; Ang v. Minister for Immigration and Ethnic Affairs (1980) 40 FLR 412).

However, because of the 2 April 1984 date, the person's last TEP must have expired or been cancelled on or before 2 April 1979 for there to be any possibility that they were absorbed prior to the cut off date of 2 April 1984.

(b) the person was liable to become a prohibited immigrant pursuant to the Immigration Act 1901

Under the 1901 Act, generally a person was a prohibited immigrant in the following circumstances:

• he or she met a particular description, most of which pertained to health or criminal record problems (section 3 of the 1901 Act);
• if the person entered Australia in contravention of a proclamation which prohibited the entry of certain classes of aliens (section 3K of the 1901 Act);
• on expiry or cancellation of a certificate of exemption to remain temporarily in Australia and a declaration was made against the person (section 4 of the 1901 Act);
• certain immigrants, (including immigrants who had obtained entry by fraud or misrepresentation), if located within specified periods (the longest of which was five years), were liable to be deemed prohibited immigrants in some circumstances (section 5 of the 1901 Act)
  

In relation to those groups who did not become prohibited immigrants until they were apprehended or until a declaration was made in respect of the person, there is some judicial authority for the proposition that a person liable to be prohibited from remaining in Australia could nevertheless become absorbed (Dixon J. in O'Keefe v. Calwell (1949) 77 CLR 261).

A person who entered Australia before 1 June 1959 (and was not subject to section 16 of the 1958 Act which had retroactive effect - see above) is likely, given their period of residence in Australia and their strong links with the community, to have been absorbed.

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