Hollis v Minister for Immigration and Multicultural Affairs [2003] FCA 1329 (24 November 2003)

Last Updated: 25 November 2003

FEDERAL COURT OF AUSTRALIA

Hollis v Minister for Immigration and Multicultural Affairs [2003] FCA 1329

CONSTITUTIONAL LAW - MIGRATION - alleged unlawful removal of the applicant from Australia - applicant a migrant and British subject in 1971 - whether he became "absorbed' in Australia and therefore no longer a migrant - if "absorbed" whether status abandoned or repudiated - whether he became an alien at sometime after 1971

Australian Citizenship Act 1948 (Cth)

British Nationality Act 1948, (UK), s 5

Citizenship Act 1948 (Cth), s 7

Judiciary Act 1903 (Cth), s 78B

Migration Act 1958 (Cth), ss 189, 196

Nationality Act 1920 (Cth) s 6(1)

Nationality and Citizenship Act 1948 (Cth)

Naturalization Act 1903 (Cth)

Passports Act 1920 (Cth)

Passports Act 1938 (Cth)

Passports Amendment Act 1984 (Cth), s 4

Constitution s 51(xix), s 51(xxvii)

Federal Court Rules, O 80

Ex parte Black; Re Morony (No 3) [1965] NSWR 753 cited

Walsh & Johnson, Ex parte: In re Yates [1925] HCA 53; (1925) 37 CLR 36 cited

Haque v Haque [1962] HCA 39; (1962) 108 CLR 230 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 189 ALR 694 cited

Re Patterson: Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 cited

Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 cited

Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 cited

R v Director General of Social Welfare of Victoria; Ex parte Henry [1975] HCA 62; (1973) 133 CLR 369 cited

R v Governor of the Metropolitan Gaol, Ex parte Molinari [1962] VR 156 cited

Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te [2002] HCA 48; (2002) 193 ALR 37 cited

Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 cited

Pryles "Australian Citizenship Law", The Law Book Company Ltd 1981

D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986-1987) 16 Federal Law Review 288

Hillier, Principles of Public International Law (2^nd Edn), Cavendish Publishing Limited 1999

M Crock, Immigration & Refugee Law in Australia, The Federation Press 1998

RICHARD MICHAEL HOLLIS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W530 OF 2001

LEE J

24 NOVEMBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W530 OF 2001

BETWEEN:	RICHARD MICHAEL HOLLIS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	24 NOVEMBER 2003
WHERE MADE:	PERTH

THE COURT DECLARES THAT:

1. The respondent was not authorized or empowered by the Migration Act 1958 (Cth) to remove the applicant from Australia on 19 November 2001.

AND ORDERS THAT:

2. The respondent pay the applicant's costs in relation to the hearing on 25 March 2003.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W530 OF 2001

BETWEEN:	RICHARD MICHAEL HOLLIS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	24 NOVEMBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1 This is an application for declaratory and injunctive orders, and an order that the respondent ("the Minister") pay damages to the applicant in respect of the alleged unlawful removal of the applicant from Australia by the Minister on 19 November 2001.

2 Senior counsel appeared for the applicant "pro bono publico" pursuant to an assignment made by the Court under O 80 of the Federal Court Rules. The Solicitor-General for the Commonwealth appeared for the Minister.

3 The applicant was born in the United Kingdom on 4 July 1958. His parents were United Kingdom citizens. (See: s 5, British Nationality Act 1948 (UK)). In May 1971 the applicant's parents and siblings arrived in Australia as migrants. Their application to migrate to Australia had been accepted by Australian authorities and the cost of their fares subsidised under a migration assistance scheme. The family entered Australia as "British subjects". (See:  s 7, Citizenship Act 1948 (Cth) - formerly the Nationality and Citizenship Act 1948 (Cth) and later the Australian Citizenship Act 1948 (Cth)) ("the Citizenship Act").

4 Under the Migration Act 1958 (Cth) ("the Act") the applicant, his siblings, and his parents were "permanent residents". With the exception of one sibling, a sister who remained in the United Kingdom, the whole of the applicant's immediate family (father, mother, three sisters, two brothers) continued to live in Australia and, it is said by the applicant, became Australian citizens. The applicant's mother died in Australia in 1983 or 1984.

5 Between 1971 and 1974 the applicant attended secondary school and thereafter commenced employment. In 1976, at the age of 18, the applicant enlisted in the Australian Regular Army to serve a term of six years. After three months service he received an honourable discharge.

6 It is not in issue that at the age of 18 the applicant, as a British subject and permanent resident, was required to enrol as an elector and that he did so and voted in elections thereafter. Until 22 November 1984 the applicant would have been entitled to be issued with an Australian passport. (See: s 4, Passports Amendment Act 1984 (Cth)). No doubt, the holder of such a passport would have been regarded by the international community as a person of Australian nationality notwithstanding that such a person was not an Australian citizen. (See: Hillier, Principles of Public International Law (2^nd Edn), Cavendish Publishing Limited 1999 at p 133).

7 In 1977 and 1978 the applicant appeared in a summary court on four occasions charged with minor charges of stealing. Fines were imposed on most offences and a term of probation on others. In 1979 the appellant was convicted in the District Court on a charge of breaking and entering a dwelling. He was sentenced for a term of two years imprisonment. Two months into that term he escaped from the prison farm to which he had been transferred a few days earlier. He was apprehended two months later and convicted in a summary court of the offences of escaping legal custody and of breaking and entering. Short periods of imprisonment were imposed for those offences and added to the term of imprisonment already being served. Other offences that may be taken to have been committed during, or in connection with, the escape from custody were also dealt with in a summary court by imposition of short periods of imprisonment cumulative upon the head sentence. An offence of breaking and entering committed at the same time was dealt with in the District Court. A short term of imprisonment was imposed, to be served concurrently with the prime sentence.

8 The applicant was released on parole on 25 January 1982.

9 At some time thereafter the applicant left Australia and travelled to the United Kingdom. It is not clear when that occurred. The material before the Court did not include outgoing passenger data in respect of that departure. In cross-examination by the Solicitor-General the applicant stated that he did not leave Australia until about January 1986. In an earlier affidavit the applicant stated that he left Australia sometime after November 1984. That date was altered upon tender of the affidavit to "after November 1983". The applicant told the Court that he left Australia without a passport. It appears that departure from Australia was in breach of conditions attached to the grant of parole, and in breach of the conditions of bail on which the applicant was released in respect of the two offences said to have been committed by the applicant in August and October of 1983.

10 The applicant married a United Kingdom citizen on 3 September 1988. Two children, born on 20 August 1986 and 17 August 1989, were included as children of that marriage. The marriage was dissolved on 8 April 1992. The applicant stated that the unwillingness of his wife to return with him to Australia contributed to the break-down of the marriage.

11 On 2 December 1994 the applicant obtained a British passport. On 16 May 1995 the applicant was granted a "tourist" visa by Australian authorities permitting him to travel to Australia and enter, and remain there for a period of three months. The applicant arrived in Australia on 16 June 1995. He remained in Australia beyond the term of the visa. On 12 August 1996 he was detained by officers of the Minister's Department as an "unlawful non-citizen". On 13 August 1996 he was granted a "bridging" visa to allow him to reside with his family and make arrangements to leave Australia. Shortly thereafter he was taken into custody for breach of the parole conditions imposed in 1982 and for presentation on the two charges on which he had been granted bail in 1983. He was held in custody for seven weeks. The 1983 offences were dealt with in the District Court on 27 September 1996. The applicant was placed on probation for a period of 18 months and directed to provide 200 hours of community service. After release from custody, he was granted several "bridging" visas to allow him to make arrangements to leave Australia. On 9 November 1996 the applicant married an Australian citizen. It was the applicant's evidence that the relationship between he and his wife had commenced before the applicant first left Australia and that a child had been born to them in 1984. It was said that the relationship resumed when the applicant returned to Australia in June 1995 and continued thereafter. The applicant departed Australia for the United Kingdom on 16 November 1996. Before he left he completed an "Application for Migration to Australia" form. The application was supported by his wife as sponsor. On 23 March 1998, whilst in the United Kingdom, the applicant was granted a Spouse Provisional (Temporary) visa which allowed the applicant to return to, enter, and remain in Australia until a decision was made on his application for a "permanent visa".

12 The applicant returned to Australia on 3 April 1998. It appears that at some time thereafter the applicant and his wife separated although both did not then regard the marriage as being at an end and hoped to see cohabitation resumed. The applicant then resided with his father who was 83, in poor health and in need of assistance. On 8 December 1999 his application for a "permanent visa" was refused. The applicant advised that the visa he then held would expire on 15 September 1999 and that a "bridging" visa had been issued, valid for a period of 35 days, within which the applicant was to make arrangements to leave Australia.

13 On 21 October 1999 the applicant was said to be an "unlawful non-citizen" and taken into immigration detention pursuant to ss 189 and 196 of the Act. The applicant applied for another "bridging" visa. The application was refused and he applied to the Migration Review Tribunal for review of that decision. On 9 November 1999 the Tribunal granted the applicant a visa which allowed him to be released from detention and make arrangements to leave Australia by 30 November 1999.

14 The appellant did not leave Australia by 30 November 1999. Apparently he continued to live with his father. On 25 October 2000 he was detained as a person reasonably suspected of being an "unlawful non-citizen". On 31 October 2000 he was placed on an aircraft and returned to the United Kingdom. At some time in 2001 the applicant returned to Australia. On 7 November 2001 he was taken into detention after being apprehended in Albany where two of his married sisters and their families had their homes. His father had moved from Perth to live in Albany with one of his daughters. The applicant applied for a "bridging" visa. The application was rejected as "invalid".

15 On 19 November 2001 the applicant commenced this proceeding which included an application for an injunction to restrain the Minister removing him from Australia. The applicant was placed on an aircraft and removed to the United Kingdom on the same day.

16 It was agreed by the parties that questions raised by the application relating to the status of the applicant, the lawfulness of his detention and removal from Australia in November 2001, and entitlement to an order that he be returned to Australia, be heard and determined separately from the questions of contempt of Court and entitlement to damages. Pursuant to s 78B of the Judiciary Act 1903 (Cth) notice was given to the Attorneys-General of the constitutional matter raised in the proceeding. No Attorney-General sought to intervene.

17 Counsel for the applicant submitted that when the applicant left Australia between 1983 and 1986 and returned to Australia in 1995 he was neither an "immigrant" nor an "alien" within the meaning of those terms in the Constitution.

18 Pursuant to the decision of the High Court in Re Patterson: Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, which the Minister acknowledged bound this Court, the applicant was a migrant upon arrival in Australia in 1971 but not an alien. (See: Patterson per Gaudron J at [35]; [51]; McHugh J at [125]; Kirby J at [307]; Callinan J at [373]).

19 As set out in Patterson the circumstance that a British subject in Australia could be regarded as an alien evolved from the removal of limitations that confined statutory provisions that operated in respect of aliens. Until that event occurred a British subject in Australia was not an alien and "naturalization" was both unnecessary and irrelevant to the attainment by that person of the status of a person who belonged to the Australian community.

20 The colonies that became the States that formed the Commonwealth of Australia were possessions of the British Crown settled by British subjects. Development of the colonies depended upon a flow of settlers as immigrants. Immigrants who were British subjects were not aliens and any person born in Australia was taken to be a natural-born British subject. (See: s 6(1), Nationality Act 1920 (Cth)). That is not to say that all British subjects were welcome or had unrestricted entry into the colonies or, later, the Commonwealth (See:  Patterson per Gummow and Hayne JJ at [146]; M Crock, "Immigration & Refugee Law in Australia", The Federation Press 1998, pp 11-14).

21 As at the formation of the Commonwealth, definition of the Australian community by reference to British nationality was carried forward to, and was part of, the new polity, or polities, formed by the Constitution. In other words, British subjects who were immigrants "belonged" to the community of the Commonwealth of Australia by virtue of the act of immigration and without more. As set out in Patterson, in due course the preference extended to British subjects had to be reviewed to take account of changed circumstances, namely, that a majority of Australia's migrant intake came from nations other than the United Kingdom and that within the international community of nations Australia had forged a separate identity from that of the United Kingdom. Ultimately Australia's development as an independent nation required the United Kingdom to be recognized as a "foreign power" within the meaning of that term as used in the Constitution. (See: Sue v Hill [1999] HCA 30; (1999) 199 CLR 462).

22 An important step in the so-called evolutionary process occurred immediately after World War II when, in 1948, Parliament repealed the Nationality Act 1920 and enacted the Citizenship Act to mark the further development of Australia as an independent nation and to identify, in part, but not exclusively, what, thereafter, constituted membership of the community of the Commonwealth of Australia.

23 That legislation was the outcome of a conference of Commonwealth Prime Ministers in which the United Kingdom and the dominions agreed to introduce nationality laws based on concepts of citizenship. The genesis of the Citizenship Act is described as follows by Professor Pryles Australian Citizenship Law, The Law Book Company Ltd 1981 at 25-26:

"In 1947 a meeting of legal experts from the Commonwealth countries met to draft the new scheme. The intention was for each dominion to enact legislation defining its own citizens and providing that such citizens as well as citizens of other Commonwealth countries would be British subjects or Commonwealth citizens, which henceforth were to be alternative titles.

It will be seen at once that the new scheme differed from the old common code in that it envisaged two national statuses - citizenship of a Commonwealth country as well as the common status of a British subject or Commonwealth citizen. The latter was made with some relatively minor exceptions, entirely a derivative status dependent on the possession of citizenship in one or more Commonwealth countries. The exceptions mainly related to the provision made in the United Kingdom legislation for the retention of British nationality by persons who had not yet acquired citizenship in any particular Commonwealth country and to the provision excluding British protected persons from the status of aliens. In addition citizens of Ireland, a non-Commonwealth country, were deemed not to be aliens.

As possession of the status of a British subject is in general dependent on the possession of citizenship in a Commonwealth country, it follows that the rules as to the possession of local citizenship define British subjects. Thus under the new scheme the definition of a British subject is entirely a statutory matter. Moreover while the rules on the acquisition of local citizenship in the United Kingdom and Australian legislation do not differ greatly from the former modes of the acquisition of the status of a British subject under the common code, some of the traditional concepts have been swept away. In particular the concept of allegiance so important at common law and incorporated in legislation up to and including that of 1914 is no longer employed in the rules defining local citizenship and therefore British subjects. But that is not to say that the substantive position has greatly changed for some of the ramifications of the doctrine of allegiance are specifically incorporated into the new legislation. For example under the prior common code a person was a British subject if he was inter alia "born within His Majesty's dominions and allegiance". The qualification to birth within the King's dominions which also required allegiance excluded from the definition of British subjects those born within the realm but who were children of foreign heads of state, ambassadors, enemy aliens and various other persons. The new scheme provides, in the case of Australia, that a child born within Australia is an Australian citizen by birth. There is no additional requirement of birth within the Queen's allegiance but some of the exclusionary consequences of the common law concept are specifically saved by s. 10(2) and (3) which exclude as Australian citizens certain Australian-born children of foreign diplomats or enemy aliens. It should also be noted that while the common law concept of allegiance is not specifically included as such in the definition of local citizens, the doctrine of allegiance has not disappeared from the law. Australian citizens as British subjects continue to owe allegiance to the Queen."

24 Although the term British subject was now converted to a derivative statutory concept under Australian law, it continued to play a part in the definition of the Australian community. An Australian citizen was, "by virtue of that citizenship", a British subject. The provisions reflected a stage of pupation between the former colonial position, where a person born in a colony was a natural-born British subject, and the development of a separate Australian nationality. (See: Pryles at 16).

25 In so far as Patterson dealt with the power of Parliament to legislate with respect to aliens (Constitution, s 51(xix)) the common view of the majority in that case, notwithstanding the disparate grounds relied upon by the respective Judges, was that at least before 1973 a British subject who was an immigrant in Australia was not an alien in the Australian community. On one view no legislative provision made in respect of aliens thereafter could purport to apply to those persons. Another view was that a provision transforming a British subject, who was part of the Australian community, to the status of alien would require clear and express words, and that no steps had been taken by Parliament in that regard.

26 Before the commencement of the Citizenship Act on 26 January 1949, (which, it may be noted, was Australia Day), the concepts of the Australian community and Australian nationality depended upon reference to British nationality. Thereafter, definition of the Australian community and Australian nationality required reference to Australian citizenship but not to the exclusion of British subjects. The underlying principle was that persons who constituted the Australian community, or body politic, would consist of Australian citizens but also certain non-citizens, namely, British subjects who "belonged" to Australia. That remained the position until 7 May 1987 when the Citizenship Act was further amended to define alienage as the absence of Australian citizenship.

27 Similar developments took place under the Passports Act 1920 (Cth) and Passports Act 1938 (Cth). Until 26 January 1949, a person had to be a British subject to be eligible to obtain an Australian passport. After that date Australian citizens, and British subjects who were not Australian citizens, were eligible to be granted Australian passports. Not until 22 November 1984 was eligibility confined to an Australian citizen and did a British subject who was not an Australian citizen cease to be entitled to obtain an Australian passport. At that point Parliament had reduced the entitlements of a British subject by withdrawing the entitlement to apply for an Australian passport but the measure operated prospectively and had no bearing on rights already exercised by those persons.

28 Similarly, when, in May 1987, the Citizenship Act redefined who, thereafter, would be treated as an alien it did so by defining a more restricted class of persons able to become part of the body politic or community of the Commonwealth. The Citizenship Act as amended did not purport to divide the existing community by excising therefrom persons who were British subjects but not Australian citizens and by divesting them of rights they held as members of that community. Perhaps through abundant caution express words were used in the repeal of the Naturalization Act 1903 (Cth) by the Nationality Act 1920 to state that the repeal did not affect the rights and status of a person who had been naturalized under the repealed Act. In the absence of express words that stated that the amendment to the Citizenship Act in May 1987 had retrospective effect and removed the rights or status of a person who was part of the Australian community and had been recognized as such by prior legislation, that amendment could not be understood to have had that effect. The Australian community as it then stood continued, although thereafter some of its members could be subject to future discrimination in respect of the exercise of particular entitlements such as enrolment to vote and the issue of passports. British subjects who had made Australia their home but were not formally Australian citizens under the Citizenship Act remained part of that community. That is not to say they were aliens who had been "absorbed" in the Australian community, and, therefore, were not liable to be treated thereafter as aliens. (See: Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te [2002] HCA 48; (2002) 193 ALR 37 per Gleeson CJ at [42]; Gaudron J at [69]). It was a matter of construction of statutory provisions which expanded the class of persons who were thereafter to be treated as aliens within the Australian community. Express and clear words were required to show the intention of Parliament to terminate the status of members of the community who hitherto were not aliens and had undertaken reciprocal obligations as community members and had established families consisting of Australian citizens. Given that one of the objects of Australian citizenship as stated in the preamble to the Citizenship Act introduced in 1993 was to "unit(e) all Australians while respecting their diversity" it is, perhaps, not surprising that the amendments to the Citizenship Act which took effect in 1987 contained no words reflecting an intent to divide the community.

29 It follows from the foregoing that the applicant was not an alien at the time he left Australia at some time between 1983 and 1986. I will return to his status as an immigrant later in the reasons.

30 The next question that arises is whether the applicant was an alien at the time he returned to Australia in 1995. The reasons of the majority in Patterson indicate that the status of the applicant as a person who was not an alien at the time he left Australia was grounded on the fact that at all times he had been a British subject who "lived" in Australia. (See: Patterson per McHugh J at [91], [125]; Kirby J at [307]; Callinan at [373], [378]). It would seem to follow that the applicant's status in Australia was subject to defeasance if he ceased to "live" in Australia. The verb "to live" as used in the respective reasons in Patterson may be taken to mean more than "to reside" and to import an intention to be, attached, and to remain so attached, to the Australian community.

31 It may be surmised, therefore, that the principles to be applied to determine whether a person has ceased to "live" in Australia would have some analogy to those applied to determine whether a domicile of choice has been established, that expression being used in a broad sense of chosen place of permanent residence. When the applicant came to Australia as a minor with his parents in 1971 the parents had elected to make Australia their permanent place of abode and chose Australia, in preference to the place of their birth, as the place in which they and their family would build their future. (See: Haque v Haque [1962] HCA 39; (1962) 108 CLR 230 per Dixon CJ, Kitto, Menzies, Owen JJ at 248). Thereafter, they, and their children, "lived" in Australia as British subjects and as members of the Australian community.

32 The question, therefore, is whether the applicant ceased to "live" in Australia when he left at sometime between 1983 and 1986. For that question to be answered affirmatively there would have to be clear evidence that he intended to sever his attachment to the Australian community to become a person who belonged to another place, to wit, the United Kingdom.

33 The relevant evidence is equivocal. The applicant states that he always regarded Australia as "home", however, he spent between nine and twelve years in the United Kingdom as a person who was a subject of the Queen of the United Kingdom. He married a United Kingdom citizen and established a family. He obtained regular employment in that country. By leaving Australia he avoided serving a period on parole and trial on offences for which he had been charged. A period of residence, however, is not in itself sufficient to show abandonment of status. It must be shown that the applicant intended to make the United Kingdom his permanent home before it can be said that he repudiated his Australian status. Clear circumstances indicative of such an intention are absent in this case. The period of absence from Australia, although substantial, does not, without more, show volition to change. Although he was a person who had been attached to the United Kingdom community until he was twelve years old, and had continuing privileges in that country, including the right to apply for a passport, he had formed a connection with Australia, and his family, consisting of his father and siblings, were part of the Australian community.

34 He took advantage of his dual status as a British citizen to travel to and reside in the United Kingdom for some years but it did not follow, necessarily, that by doing so he therefore abandoned his connection with, and status in, Australia. I am not satisfied that the Minister has shown that the applicant had abandoned or terminated his status as a non-alien in Australia before he returned to Australia in 1995.

35 I return now to the question whether the applicant, after arrival as a migrant, became absorbed into the Australian community and a person beyond the reach of the Commonwealth's power to legislate in respect of immigrants. (Constitution, s 51(xxvii)).

36 When the applicant entered Australia with his parents he was included within the "entry permit" granted to his father upon arrival in Australia. The permit allowed the applicant to remain in Australia "permanently". As noted earlier, how and when the applicant left Australia is not clear.

37 The issue in the instant case is whether the Minister had power to remove or deport the applicant from Australia under legislative provisions based on the immigration power. It was accepted in Patterson that the Minister did not have that power in respect of a person who was no longer an immigrant. It is unnecessary to consider whether the Act, relying on the immigration power, could purport to empower the Minister to deny re-entry to Australia of a person who, although not an Australian citizen, had been absorbed into the community and was no longer a migrant. (See: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277; Minister for Immigration & Multicultural & Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 189 ALR 694; R v Governor of the Metropolitan Gaol, Ex parte Molinari [1962] VR 156).

38 The applicant came to Australia as part of a migrant family in 1971. His intention at that time, as an infant, was taken to be of his parents, namely, to become part of the Australian community. The parents became part of the Australian community between 1971 and 1976, and the applicant as part of that family was included in that process of absorption. (See: R v Director General of Social Welfare of Victoria; Ex parte Henry [1975] HCA 62; (1973) 133 CLR 369 per Gibbs J at 373-374; Stephen J at 378; Mason J at 382; Murphy J at 388). The applicant completed his education at Australian schools. It may be assumed that he established relationships and connections with his peers in the community. In 1976 after attaining the age of 18, the applicant enrolled and thereafter voted as an elector. He enlisted and rendered service for a short while in the Australian Army. Had the applicant not subsequently committed offences for which he was sentenced to periods of imprisonment, it would not have been in issue that the applicant had been absorbed in the Australian community.

39 The applicant's first conviction as an adult occurred seven years after he arrived in Australia. First, it is to be noted that the offences occurred within a short period and when he was only twenty. A sentence other than imprisonment must have been given serious consideration. He escaped from legal custody within two months and committed further offences whilst out of custody. Two further offences were committed after he was released on parole. He was then twenty-five. None of the offences was of a type that involved an attack on social values of such degree that a proposition could be advanced that the applicant had renounced the norms of, and any regard for, the society he was in. (See: Molinari at p 173).

40 The better view may be that the applicant committed offences for which he was adequately punished and that his criminal conduct, whilst not insignificant, did not involve repudiation of the society in which he lived, nor allow it to be said that he remained outside and unabsorbed by that community. In truth he was a member of society who had committed offences. (See: D Wood, "Deportation, The Immigration Power, and Absorption into the Australian Community" (1986-1987) 16 Federal Law Review 288 at 298-299).

41 The Minister acted on the assumption that the applicant was not a person absorbed in the Australian community and, therefore, bore the onus of proving that fact. (See: Ex parte Black; Re Morony (No 3) [1965] NSWR 753 at 757).

42 In that regard the Minister relies upon the offences committed by the applicant. That circumstance is a consideration to be taken into account but, without more, is not sufficient in this case to outweigh other indicia of absorption. The applicant had been in Australia as a migrant for approximately eight years before being convicted of the offence for which he was imprisoned. That period of time and the events within that period that point to the applicant having accepted Australia as his home just as it had become the home of his family. Being a migrant who was a British subject he had a preferred path for absorption into the Australian community. By January 1979 he had settled in Australia and was part of Australian society. Thereafter he was not a person to whom the provisions of the Act, based on the immigration power, applied. (See: Walsh & Johnson, Ex parte: In re Yates [1925] HCA 53; (1925) 37 CLR 36; Potter v Minahan (supra); Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533; Patterson per McHugh J at [105]).

43 The remaining issue is whether the Minister has shown that the applicant abandoned his status as an absorbed member of the Australian community. That question raises similar issues to those considered when determining whether the applicant repudiated his Australian status as a "non-alien". The applicant left Australia to avoid the consequences of the offences with which he had been charged and in breach of conditions attached to his release on parole. He returned to the United Kingdom where he had no home but did have a right to reside. He had an elder sister who remained in the United Kingdom but it was not suggested that he had any contact with that sibling or that she assisted him in any way. He was a person who could readily make the United Kingdom his permanent home if that was his intent. He married a United Kingdom citizen in September 1988. There were two children of the marriage and a matrimonial home was established. Although he says his wife was opposed to moving to Australia he did not take any step to return until three years after the marriage was dissolved. In cross-examination the applicant explained the delay by the ties he had to his infant children. He obtained regular employment in the United Kingdom and a United Kingdom passport in December 1994. In all, he spent nine to eleven years in the United Kingdom before returning to Australia. At that point the evidence may be said to be equivocal, but nonetheless, on one view, able to support a conclusion that he had abandoned Australia as his home and place of permanent residence. However, it is to be borne in mind that his departure from Australia was not the implementation of a reasoned plan to emigrate and abandon connection with Australia. It appears to have been an unreasoned step taken to avoid the problems and responsibilities then confronting him.

44 In addition to the foregoing there was the evidence of the applicant that he always intended to return to Australia, had not abandoned his position as a member of the Australian community, and regarded himself as an Australian. He maintained that position throughout cross-examination. He stated that he had not registered as an elector in the United Kingdom and had voted as an absentee voter in Australian elections. He rejected the proposition that by 1995 the United Kingdom had become his home. He stated that it was where he had resided but his home was with his family in Australia. Although the applicant was a person who had been convicted of offences of dishonesty it was not the Minister's case that it followed necessarily that the applicant could not to be believed on any point in issue. However, the applicant's evidence of his intentions at material times involved assertions easy to make and difficult to test and must be treated with considerable caution.

45 Having regard to all of the material before the Court I am not satisfied that the Minister has discharged the onus of demonstrating that the applicant repudiated his relationship with Australia and abandoned Australia as his home. It has not been shown that by returning to and residing in England the applicant crystallized a plan to make the United Kingdom his permanent home and divest himself of his Australian connections and ties.

46 It follows that on the state of the law as it now stands a declaration should be made that as at 19 November 2001 the Minister was not authorised by the Act to remove the applicant from Australia. It may be assumed that it is unnecessary to make any further or consequential orders at this time.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated: 24 November 2003

Counsel for the Applicant:	AN Siopis SC, PJ Hannan
(pro bono publico)
Counsel for the Respondent:	DMJ Bennett QC, PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 2003
Date of Judgment:	24 November 2003