Attorney-General (Cth) v Ah Sheung [1906] HCA 44

High Court of Australia|1906-07-01|Before: O'Connor J, Cussen J

COMMONWEALTH . : r i AND AH SHEUNG . e 7 ' . " . ReEspoNDENT.

Immigration Restriction Act 1901 (No. 17 of 1901) - Prohibited immigrant - H. C. or A. Application of Act to Australian citizen - The Constitution (63 & 64 Viet. c. 12), 1906. sec. 51 - Habeas corpus - Jurisdiction of High Court. _

'ih re ea 5 MELBOURNE, 'The High Court has jurisdiction to entertain an appeal from the Supreme 7,,...

Quire, whether the power of the Parliament under sec. 51 of the Constitu- tion to deal with ' immigration " extends to the case of Australians absent from Australia ona visit animo revertendi.

On 30th March 1906, a writ of habeas corpus issued out of the Supreme Court of Victoria, commanding Charles Lindberg, captain of the ship Zsinan, then in the River Yarra, in the State of Victoria, to have the body of Ah Sheung, a Chinese, before a Judge of that Court, together with the cause of his being taken and detained by the said Charles Lindberg. To this writ Charles Lindberg made the return that Ah Sheung was a prohibited immi-

H.C. oF A. grant within the meaning of the Immigration Restriction Acts

ita 1901-1905, inasmuch as he was a person who, on 28th Mareh Arrorsey. 1906, failed to pass the dictation test, within the meaning of, and Gaerean won as required by, such Acts, and, that, as master of the ship 7'sinan

weatra he (Lindberg) was liable to a penalty of £100 if Ah Sheung, being a prohibited immigrant, entered the Commonwealth contrary to such Acts, and was authorized and required by such Acts to pre- vent, and did prevent Ah Sheung, as such prohibited immigrant, from entering the Commonwealth from such ship ; that, after the issue and service upon him (Lindberg) of the writ, namely on 30th March 1906, he did, by arrangement with the solicitor acting for Ah Sheung, and with the concurrence of the Commonwealth authorities, because his ship was about to clear for China ports, allow Ah Sheung to land from the ship, and that Ah Sheung was immediately thereafter arrested by an officer of Customs and charged with being a prohibited immigrant offending against such Acts, and that such charge was at the time of the return still pending, Ah Sheung having been released and being on bail.

Affidavits were filed on behalf of Ah Sheung in which it was stated that Ah Sheung came to Victoria about 1881, that in May 1883 he obtained letters of naturalization under the Aliens Act 1865, that prior to 1901 he had made two visits to China, always returning and being admitted into Victoria without objection, that in 1901 he again went to China, remained there about five years, and returned in the Zsinan, when the detention complained of took place.

On the return of the writ before Cussen J., the learned Judge found that from 1883 onwards, Ah Sheung was a domiciled Vic- torian subject of the reigning Sovereign, and that, except during his visits to China, he was also resident in Victoria. The learned Judge therefore held that the Immigration Restriction Acts did not apply to Ah Sheung, and ordered his release: Ah Shewny v. Lindberg (1).

Subsequently Ah Sheung was prosecuted before a police magis- trate, on the information of John Mitchell Christie, charging that he was a prohibited immigrant found within the Commonwealth on 30th March 1906, and the information was dismissed.

Appeals were brought to the High Court both from the dis- H.C. or A. missal of the information and from the judgment of Cussen J. Re In the former case the appeal was allowed and the case was acaunte remitted to the magistrate for a re-hearing: Christie v. Ah = Ceara Sheung (1). WEALTH

In the appeal from the judgment of Cussen J., leave was granted Au sie to the Attorney-General for the Commonwealth to intervene as

Bryant for the appellant. H. Burret and Arthur for the respondent.

Grirrira OJ. We have no doubt as to the jurisdiction of the High Court to entertain this appeal. The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament, and no exception is made by the Judiciary Act in cases of habeas corpus.

We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term " immigration" as used in sec. 51 of the Constitution admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.

But we think that there is much force in the view which commended itself to Cussen J., although not argued before us, that the term "immigration" does not extend to the case of Australians - to use for the moment & neutral word - who are merely absent from Australia on a visit animo revertendi. Who in this view should be considered Australians, so as not to be "immigrants" on their return ; whether the right to admission should depend on domicil in the ordinary legal acceptation of that term, or on bond fide residence ; whether the Commonwealth

H.C. or A. Parliament has power, as an incident of its power to regulate pas: immigration, to prescribe tests for determining whether a person Arrorney. Seeking to enter the Commonwealth falls in fact within the Coniton Suggested exception, and incidentally to appoint a special weattH tribunal to determine the question; whether it did so by the Act xc. of 1901, and, if so, whether the provisions of that Act are applic- able to the present case, are all matters deserving serious consideration. The question of the respondent's identity, upon which his actual liability to be deported depends, even in the most favourable view of the law, is still undetermined. If it should become necessary, we shall desire further argument on all these points. The case will therefore remain on the paper for q

On the further hearing of the information above referred to, the identity between Ah Sheung, the defendant, and Ah Sheung, anaturalized subject of the King in Victoria, was established. The appeal from the decision of Cussen J. was then abandoned.

Solicitor, for appellant, Powers, Commonwealth Crown Solicitor. Solicitor, for respondent, Sabelberg, Melbourne.

At a glance

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Judgment (21 paragraphs)

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