Absorbed Persons – an Overview – Illegals can be Absorbed Persons

There is a myth that illegals can NOT be absorbed persons.  The writer is of the opinion that in the right circumstances an illegal can still hold an absorbed person visa.  This notion comes from a comment by Barwick CJ in the High Court case of R v Forbes; Ex p. Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168 (5.5.1971) at paragraph 6:

If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. Once a prohibited immigrant, he remains both an immigrant and a prohibited immigrant subject to ss. 7 and 10. (at p173)

But of course a careful reading of the comment reveals it only refers to people who ENTERED Australia illegally and does not refer to those who have legally entered but remained after their visa or entry permit expired.  The situation of the latter is set out in MIMIA v Nystrom [2006] HCA 50; (2006) 230 ALR 370; (2006) 81 ALJR 1 (8.11.06) where Gummow & Hayne JJ concluded

19. It would appear that the rationale of these provisions in s 34 was to confirm the legal status of certain persons who had unintentionally been rendered prohibited non-citizens by s 8(2) of the 1983 Amendment Act]. The purpose of s 8(2) was to render prohibited non-citizens those persons who, notwithstanding that they had overstayed their visas, would have escaped the status of illegal entrants by dint of s 7(4) of the Principal Act (also repealed by the 1983 Amendment Act). Section 7(4) removed the status of “prohibited immigrant” from a person who had acquired it by reason of the expiration or cancellation of a permit under s 7(3) after five years had elapsed where no deportation order was then in force. However, the purpose (as is made clear by the Second Reading Speech) was not to affect those whose permanent residence had been regularised. That is, persons who had overstayed their visas for more than five years would be rendered prohibited non-citizens only if they had not been absorbed into the Australian community prior to 2 April 1984. After that date the status of “immigrant” was to become irrelevant for the structure of the Principal Act.

20. However, the text of s 8(2) of the 1983 Amendment Act also captured all persons who had ever benefited from s 7(4), including those who had become absorbed and who had therefore ceased to be immigrants. Section 16 of the Migration Laws Amendment Act (No 2) 1992 (Cth) (“the 1992 Amendment Act“) was designed to remedy this oversight. It did so by limiting s 8(2) retrospectively so that the sub-section never applied to persons who had ceased to be immigrants prior to 2 April 1984, and had not left Australia since that time. It would appear that s 34 (as introduced by the 1994 Amendment Act) was intended to confirm the lawful status of those persons following the further reforms of 1992 to 1994.

21. As has previously been remarked, the statutory genesis of s 34 is found in the 1994 Amendment Act. This statute omitted from the 1992 Reform Act the third sub-section of what became (following renumbering) the new s 13 of the Principal Act. That sub-section would have exempted those persons who fulfilled the conditions of s 34 from the universal visa requirement. However the Parliament changed its position and instead decided that those people should be brought within the visa system rather than form an exception to it. Accordingly, the 1994 Amendment Act inserted the provisions which created the absorbed person visa as a class of visa within s 31(2) of the Principal Act.

22. Although the Explanatory Memorandum[13] characterises the group of people to whom the new s 34 was to apply as “a small number of absorbed persons, who are lawfully in Australia as permanent residents despite not holding an entry permit”[14], the words adopted were broader than that. Those words were capable of applying, and did apply, equally to absorbed persons who did hold an entry permit. The respondent was such a person. [Footnotes omitted]

That last paragraph is the key, the absorbed person visa can apply to persons who are ILLEGAL!

The absorbed person visa is created by s. 34 of the Migration Act which reads:

(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.

(2) A non-citizen in the migration zone who:

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

(b) before that date, had ceased to be an immigrant; and

(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994.

So one does not have to apply for an absorbed person visa, one is granted such a visa by force of law.  The key is to determine what characteristics makes a person an absorbed person. Some guidance is obtained by the PAM (note that the ex-MSI 116: Absorbed person visas was replaced on  09.8.08 by PAM3: Act – Act based visas – Absorbed person visas.)  Here is what the PAM says:

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, 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 at section 2 Background – Persons cease to be immigrant that s6 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, s6 would not apply – see section 4 Ceasing to be an immigrant. This factor would also apply in relation to persons who held permanent entry permits

On the status of children the PAM says:

The judges have expressed different views on whether a child has the capacity to be absorbed into the community in his or her own right or whether he or she can only be absorbed by virtue of the absorption of his or her parents. There has been some judicial dispute whether children could become absorbed before reaching adulthood at age 18 because they lack full capacity and hence lack the capacity to form the intention to become a member of the community (R v. Director – General of Social Welfare (Vic.) ex parte Henry (1975) 133 CLR 369). Whichever view is adopted, if the person had turned 18 before 2 April 1984, and indications such as those listed above applied, the likelihood is that such a person would have been absorbed and ceased to be an immigrant.

One could write a treatise on absorbed person visas but for the current purposes it is sufficient to say that if a person was present in Australia on 2 April 1984  and had remained in Australia ever since apart from a temporary visit then there is a fair chance that person may hold an absorbed person visa even if that person now has been illegal for years and years!

The writer is prepared to take on litigation involving absorbed person visas on a NO WIN NO FEE basis.