Moore v Minister for Immigration and Citizenship [2008] HCATrans 204 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M104 of 2007

B e t w e e n -

ANDREW MOORE

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 3.05 PM

Copyright in the High Court of Australia

MR G.M. HUGHAN: May it please the Court, I appear on behalf of the applicant. (instructed by Clothier Anderson & Associates)

MR W.S. MOSLEY: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)

HAYNE J: Yes, Mr Hughan.

MR HUGHAN: If the Court pleases, the Full Court was required in determining the matter before it to make a determination as to whether or not the applicant had ceased to be an immigrant as at 2 April 1984, and that in turn required it to answer the question of whether he had been absorbed into the Australian community by that date. The Full Court determined that he had been absorbed into the community and therefore that he had ceased to be an immigrant as at that date and the consequence of that was that it concluded that he held an absorbed person visa which was validly cancelled by the respondent’s determination.

Now, in coming to that decision, it is submitted that the Full Court made a critical failure of application of principles and that can be demonstrated by reference to a couple of short paragraphs of the Full Court’s decision which appear at page 42 of the application book, in particular, around line 19 and following in paragraph 60 of its decision. The court says there:

We are of the opinion that the appellant had, in all the circumstances, himself been absorbed into the Australian community well before 2 April 1984.

This is the critical failure in the next sentence, in my submission:

The fact that he may have gone off the rails along the way is quite a different thing from a rejection by him of the Australian way of life and all that that entails.

In my submission, what can be seen there is the Full Court applying a principle to determine the question of whether or not the applicant had ceased to be an immigrant, which is an incorrect statement of the principle, and that the correct statement of principle, the question of whether a person ceased to be an immigrant or not. There has been a number of different statements over periods of time because of that constitutional question, but the most relevant recent best statement is that of Justice Callinan in Ex parte Dang and Te, and that is, your Honours, by reference to that decision at paragraph 227. The Full Court itself refers to Justice Callinan’s judgment at line 40 on page 38 of the application book, but the essential aspect of what Justice Callinan said was:

To be absorbed, a person must fit into, live in the community, and seek to make himself a member of the community, and to participate in the lawful activities of it.

I extrapolate from that, your Honours, that what absorption requires is both an acceptance by the person of the community and an acceptance by the community of the person, and what the Full Court has done in this case is really only dealt with one half of the equation that it needed to deal with. In other words, getting back to that sentence, the fact that he has gone off the rails is quite a different thing from a rejection by him of the Australian way of life and all it entails, but that is not the question that the Full Court ought to have been looking at.

They needed, in my submission, to look at whether he fitted into the community, whether he lived in the community – he certainly did that – but whether he fitted into the community in the sense that he accepted the community and the community accepted him.

HAYNE J: How do you go about making that assessment?

MR HUGHAN: You go about making that assessment by reference to the factors, for example, that Justice French set out in Johnson’s Case, but overarching those factors is this proposition – and that is handily set out at page 39 of the application book, the extract from Justice French’s decision there, and at about line 22 and following, the paragraph there – setting out some of the factors that were relevant to that question, but his Honour Justice French concluded in this way:

This list of factors is plainly not exhaustive. Rather, it illustrates the multidimensional character of the judgment involved.

Just above setting out those factors he says this:

It is important to bear in mind also that it is a metaphor –

that is, absorption –

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.

Now, it was a constitutional question in the context of the historical constitutional cases but it is now a statutory question, if I can call it that, by reason of the adoption of the expression “ceased to be an immigrant” within section 34 of the Migration Act as being the essential criteria that was at the heart of the decision here.

HAYNE J: But does it come to the proposition that this applicant never ceased to be an immigrant?

MR HUGHAN: That he did not cease to be an immigrant before 2 April 1984 because that is the critical time for the determination by reference – in other words, if a person had ceased to be an immigrant last week, they still would not be eligible for an absorbed person visa because of the timing factor. They had to have ceased to be an immigrant as at 2 April 1984. So the concentration of the question needs to be between 1977, his arrival, and 1984, 2 April - - -

CRENNAN J: As I understand it, and correct me if I am wrong, the only reason put forward to support the assertion that he was not absorbed was his, what I might call, juvenile criminal record as at 2 April 1984, is that right?

MR HUGHAN: That is not quite right. Can I say this. That was certainly the main focus of it, but it was submitted that essentially that was an indication that he had not accepted the community, but there was other evidence that was also pointed to, including the difficulties he had with alcohol at an early age from around the time or soon after he was 14, according to Justice Vincent in the sentencing remarks, involving the subject offence that led to the cancellation decision, but, I have got to say this, your Honour, it was certainly the main focus of attention, that criminal behaviour, but it was put that that criminal behaviour, if I can put it in this way, was symptomatic of a failure to fit into the community, to become part of the community, in the way that the section 34 requires as a precursor.

HAYNE J: That is going from, ceases to be an immigrant by absorption into the community to fits into the community to lawlessness means you have not fitted into the community. Is that not the chain of reasoning you are seeking to have adopted?

MR HUGHAN: Not quite that blunt, I hope, your Honour.

HAYNE J: I know it is not presented by you as bluntly. What I want to know is whether that is what it comes down to.

MR HUGHAN: No, and there are cases where juvenile lawlessness has been determined not to preclude absorption, and I do not say that those cases are wrong by way of point of principle or anything of that nature, but what I do say is that the question here is, was this criminal offending, and the other factors that were pointed to as being difficulties of settling in, did that demonstrate an acceptance by him of the community and an acceptance by the community of him? There is really two sides to the question in the way that it ought to have been posited and the Full Court only answered one part of the question.

Now, of course, the matters set out by Justice French as being illustrative of the factors that might lead to absorption or not assist in determining and have been looked at by the Full Court, but they are not exhaustive and they are not conclusive and the conclusive question is – really I would seek to state it in terms as Justice Callinan did in Te’s Case. Essentially, the criminal offending that has been engaged in here might be seen to be falling in a couple of lots.

There was a significant number of offences of burglary and theft for which the applicant went to the Children’s Court, offending probably in 1981, as his Honour Justice Weinberg concluded, but went to the County Court in early 1982. Then there were some relatively minor matters in 1983-84, but then there was matters in court in 1985 that were sought to be relied upon by way of fresh evidence, or by the way of application for the Full Court to receive that new evidence on the appeal, that demonstrated events that occurred before 2 April 1984 that showed more significant criminality that had occurred in early 1984 prior to the absorption date, and again illustrative of a failure to accept the community and a failure for the community to accept him.

The Full Court said, we do not accept that evidence – and their conclusion in relation to this is set out at paragraph 60 back on page 42, a little bit further on:

As indicated above –

and they are referring back to, really, the first couple of pages of their judgment –

further evidence that may have established that two convictions entered after 2 April 1984 which lead to the imposition of sentences of imprisonment . . . related to offences that were committed before 2 April 1984, would not be likely to have produced a different result.

The reason, in my submission, the court concluded that they were not likely to have produced a different result was because again of its failure to look at both sides of the equation that it needed to do. So, having determined that going off the rails by him did not preclude absorption, it did not need to determine whether those offences that were dealt with after 1984 reflected on the question prior to 2 April 1984 and, in my submission, the Full Court was incorrect in making that determination.

Now, I have focussed so far on the question of this particular applicant and, of course, the gripes or otherwise of this particular applicant are not the only matters that this Court is going to consider in whether to grant special leave, and so can I highlight what I say the importance of this question is for the administration of justice generally and that is that the circumstances in which absorption does or does not take place specifically in relation to a child are vague, I think the courts have previously indicated.

Justice French in Johnson’s Case gives some guidance, but essentially that is only guidance in relation to the number of factors that were seen to be relevant in relation to that case. Essentially what, in my submission, is needed is this Court’s authority to determine whether the commission of criminal offending and otherwise being unsettled in the way that this applicant was after coming to Australia as a young person precluded his absorption into the community in the way that I have argued for.

Now, that, in my submission, is an important question because of the continuing relevance. Although absorption as at 2 April 1984 is now in one sense an historical issue, it is of continuing relevance to the question of whether or not a person has an absorbed person’s visa under the current Migration Act scheme and will likely remain of relevance for some time to come. If the Court pleases.

HAYNE J: Yes, thank you, Mr Hughan. We will not trouble you, Mr Mosley.

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal in this matter. Special leave is accordingly refused and must be refused with costs.

AT 3.18 PM THE MATTER WAS CONCLUDED