The absorbed person concept comes from when Parliament relied upon the ‘immigration’ power in the constitution as the constitutional basis for the Migration Act. Simply put a person at some stage ceases to be an immigrant when he or she is ‘absorbed’ into the Australian community. But in 1984, all the nomenclatures in the Migration Act were changed from ‘immigrant’ to ‘non-citizen’. This changed the constitutional power for the Migration Act from s 51(xxvii) of the Australian Constitution (‘immigration and emigration’) to s 51(xix) (‘naturalization and aliens’). This overcame a constitutional limitation on regulating the movement of people into and out of Australia.
Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom  HCA 50 (8 November 2006 at para’s 140 & 141 described the situation like this:
Since the introduction of ss 200 and 201 into the [Migration] Act in their present form it has been noted that absorption, a concept relevant to the process of immigration, is irrelevant to the operation of laws made pursuant to the naturalization and aliens power.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Te, Gleeson CJ said:
“Treating absorption into the community as relevant to the status of alienage is inconsistent with earlier judicial views as to the width of par (xix) compared with par (xxvii) … In my opinion, it is wrong in principle. For reasons already discussed, while absorption reflects the fact that an activity of immigration has come to an end, it may co-exist, and commonly co-exists, with a legal status of alienage. Resident aliens may be absorbed into the community, but they are still aliens.”
In 1984 a type amnesty was granted to non-citizens who were no longer immigrants by way of the absorbed person visa. Before 1984 at the risk of over-simplification, a non-citizen, who was no longer an immigrant could not be deported.
Here is how the absorbed person visa comes to into existence:
Section 34. (of the Migration Act) Absorbed person visas
- (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.
A key question here is can it apply to a person who was subject of a deportation order as at 1 Sept 1994.
In Nystrom, the High Court found there was no difficulty in cancelling an absorbed person visa on character grounds.
Here the former visaholder had been present in Australia from about 6 weeks after birth (since 1974) but had committed serious offences. An argument that s. 200 of the Migration Act restricted the exercise of the character cancellation power under s. 501 of the Migration Act was rejected by the High Court.
Section 200. Deportation of certain non-citizens
Section 201. Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.
The High Court overturned the Full Federal Court decision cited as Nystrom v MIMIA  FCAFC 121 (1.7.05). There is one residual part of that judgement which is useful:
11 It is accepted by the Minister that the appellant had ceased to be an immigrant by absorption into the Australian community before 2 April 1984. It is accepted that on the face of it the appellant satisfies all the criteria in s 34(2). However, it is submitted by the Minister that the criteria for an absorbed person visa should be viewed, when considering the scope of reg 4, as intended to apply to a limited class of immigrants, namely those who became absorbed persons prior to 1984 although they had been illegal immigrants and the appellant is not such a person. The Minister’s argument obtains some support from consideration of the legislative history and extrinsic material to which reference was made. However, the ordinary meaning of the provision is clear. It is not ambiguous or obscure and does not lead to a result that is manifestly absurd or is unreasonable. Thus, s 15AB of the Acts Interpretation Act 1901 (Cth) does not permit the use of extrinsic material to arrive at the construction contended for. The statute operates according to its terms and the appellant must be taken to have been granted an absorbed person visa on 1 September 1994.