Potter v Minahan [1908] HCA 63

Potter v Minahan [1908] HCA 63 - HCA 1908 case summary — Zoe

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it for a domicil of choice. His residence up to 1896 had been that of his putative father, who had no rights over him, unless it may be inferred from the evidence that Winifred Minahan had given him a certain right of custody of the child, sufficient to ayail against others than herself. This did not change his domicil of origin, nor can anything he did himself up to 1898 be held to have done so. Now as to the period following 1898, I will first quote passages from the judgments of the House of Lords in the case of Moorhouse vy. Lord (1). Lord Cranworth said: - "In order to acquire a new domicil, according to an expression which I believe I used on a former occasion, . . - a man 'must intend quatenus in illo exuere patriam' : Whicker y. Hume (2). It is not enough that you merely mean to take another house in some other place, and that on account of your health, or for some other reason, you think it tolerably certain that you had better remain there all the days of your life. That does not signify." Lord Kingsdown said (3) : - " change of resi- dence alone, however long and continued, does not affect a change of domicil, as regulating the testamentary acts of the individual. It may be, and it is, a necessary ingredient ; it may be, and it is, strong evidence of an intention to change the domicil, - in my opinion no change of domicil is made. . . . A man must intend to become a Frenchman instead of an Englishman." Lord Chelmsford in his judgment adopted what was said by Lord Wensleydale in Aikman v. Aikman (4), as a clear statement of the rule on this subject: - * Every man's domicil of origin must be presumed to continue until he has acquired another sole domicil by actual residence, with the intention of abandoning his domicil of origin. This change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts that change." In Udny v. Udny (5), Lord Westbury, after pointing out that it is a settled principle that no man shall be without a domicil, and to secure this result "the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if

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but a word of ordinary discourse, and is usually employed without technical precision." (Conflict of Laws, 1st ed., p. 80). But the existence of the tie which under the general description of home attaches a person to one country rather than to any other has always been recognized by international law. "The domicil of any person is, in general, the place or country which is in fact his permanent home, but is in some cases the place or country which, whether it be in fact his home or not, is deter- mined to be his home by a rule of law." (Jb. page 79). Under the legal doctrines which regulate domicil in the latter sense, the law by a fiction may ascribe domicil to a person in a country in which he has never resided since infancy merely because he was born there. Domicil of that kind has no relation to the facts and circumstances which constitute home, and has no bearing on the interpretation of the Act now under consideration. But domicil in the former sense is a question of fact depending upon the same circumstances which must obtain in determining the country which is a person's home. In that sense of the word domicil and home are convertible terms, and some observations of Lord Wensleydale in Whicker v. Hume (1), in this connection are worthy of consideration. "There are several definitions of "domicil, which appear to me to pretty nearly approach correct- ness. One very good definition is this: Habitation in a place with the intention of remaining there for ever, unless some circumstance should occur to alter his intention; I also take the definition from the Code, which is epigrammatically stated, and which I-think will be found perfectly correct." Lord Wensley- dale vead the passage from the Code, which was translated by my learned brother the Chief Justice in Davies v. The State of Western Australia (2) as follows: - * It is not in doubt that every man has his domicil in the place where he sets up his household shrine and his principal establishment, whence he has no intention of again departing, unless something should call him

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its laws. Correlatively he is entitled to the benefit and protection of those laws, and is entitled, among other things, to entry and residence in any part of the King's Dominions except in so far as that right has been modified or abolished by positive law. But the British Empire is subdivided into many communities, some of them endowed by Imperial Statute with wide powers of self government, including the power to make laws which, when duly passed and assented to by the Crown, will operate to exclude from their territories British subjects of other communities of the Empire. To this extent the British subject's right to enter freely into any part of the King's Dominions may be modified by Statute law. The right is founded on the obligations of national allegiance. International law recognizes for purposes of alle- giance only sovereign nationalities - not sub-divisions of a nation

and in questions between the British Empire and other nations Australian nationality cannot be recognized. But in questions between the Australian community and its members it would seem to follow that the principle which regulates rights as between the British Empire and its subjects must be applied in determin- ing the relations of the Australian community to its members. A person born in Australia, and by reason of that fact a British subject owing allegiance to the Empire, becomes by reason of the same fact a member of the Australian community under obliga- tion to obey its laws, and correlatively entitled to all the rights and benefits which membership of the community involves, amongst which is a right to depart from and re-enter Australia as he pleases without let or hindrance unless some law of the Australian community has in that respect decreed the contrary. Tt cannot be denied that, subject to the Constitution, the Com- monwealth may make such laws as it may deem necessary affect- ing the going and coming of members of the Australian com- munity. But in the interpretation of those laws it must, I think, be assumed that the legislature did not intend to deprive any Australian-born member of the Australian community of the right after absence to re-enter Australia unless it has so enacted by express terms or necessary implication. In the Act under consideration the legislature has plainly enacted, and in doing Vou. vit. 20

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Council in Abd-wl-Messih v. Farra (2). Chitty J., speaking of suggested domicil of choice by an Englishman in China, said (3): - "The difference between the religion, laws, manners, and customs | of the Chinese and of Englishmen is so great as to raise every" presumption as against such a domicil, and brings the case within the principles laid down by Lord Stowell in his celebrated judg- ment in The Indian Chief (4) and by Dr. Lushington in Maltass v. Maltass (5)." Dr. Lushington in the last-mentioned case said (6): - "I_ give no opinion, therefore, whether a British subject can or cannot acquire a Turkish domicil; but this I must say, - I think every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the domin- ions of the Porte. As to British subjects, originally Mussulmen, as in the East Indies, or becoming Mussulmen, the same reasonin; does not apply to them as Lord Stowell has said does apply it cases of a total and entire difference of religion, customs, and habits." : These cases, and particularly the concluding words of the - passage quoted from Lord Stowell's judgment, seem to me to have - close application to the present case, and to show the necessity of extremely strong facts to overcome the presumption created by the combination of the conditions tending to the practical absorption of the respondent in the mass of the Chinese people. Lord Lindley in Winans vy. Attorney-General observed (7): - "Intention may be inferred from conduct, and there are cases in _ which domicil has been changed, notwithstanding a clear state- - ment that no change of domicil was intended: see Re Steer (8), and per Wickens V.-C. in 12 Eq.,644. An expressed intention to return for a temporary purpose, or in some possible event which never happens, will not prevail over a clear inference from other circumstances of an intention to remain : see Attorney-General v. - Pottinger (9), per Bramwell B., and Doucet v. Geoghegan (10). Asking myself then the plain and practical question whether

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The question of residence (as distinguished from domicil) has often been discussed under the English Poor Laws. An intention to return to, to resume, residence at one's original or previous place of abode does not exclude the idea of residence elsewhere in the meantime. Intention to reswme residence is not a retaining of residence. In Churehwardens ce. of Wellington v. Chureh- wardens &e. of Whitchurch (1) a miner, resident with his family at Whitchurch, contracted to work in Cuba for three years. He meant to return, and arranged that his wife should be paid a certain proportion of his wages. He came back before the three years to the same home; and the question arose whether there had been such a break of his residence in Whitchurch as to render him removable from that parish. It was held that he had "resided " in Cuba, and that his absence amounted to a break of his residence at Whitchurch. Blackburn J. adopted the words used in R. vy. Stapleton (2), that "an intention to return at a remote period, after a permanent absence, is not sufficient to prevent the absence from being a break" of residence. So, in West Ham Union vy. Cardiff Union (3) a seaman was held to be not resident at the abode which his wife took, although he joined her after his voyage. It may be that if one has a definite home in Aus- tralia, say, with parents or relations, and leaves it for a definite purpose, say, to study at a European University, he cannot be treated as an immigrant (In re Buchsbaum (4) ); or it may be that the legislature contemplated that in the administration of the Act no Government would think of applying the dictation test in such a case. But there surely can be no difficulty here. A child, illegitimate, born in Victoria of a Chinese and a British girl, is taken away, about 1882, at five years of age, by his father to the father's village in China, for an indefinite time, for indefinite purposes, except that the father naturally desired the child's society. The mother sees them off

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of his birth he is not "immigrating," &. I cannot find any foundation for these contentions. Throughout the British Em- pire there is one King, one allegiance, one citizenship. I use this last word, not in the Roman or in the American sense, but only because there is no suitable abstract noun corresponding to the word "subject" (natural-born or naturalized). Even when Eng- land and Scotland were distinct kingdoms under one King, from 1603 to 1707, there was no distinction recognized between 'English and Scottish citizenship. There was not one local allegiance for the subjects of England, and another local allegi- ance for the subjects of Scotland. All the King's subjects are members of one great society, bound by the one tie of allegiance to the one Sovereign, even as children hanging on to the ropes of a New Zealand swing. The top of the pole is the point of union: Calvin's Case (1). The fact of birth on British soil made the respondent a British subject, owing allegiance and entitled to protection ; but that is all. I know of no principle of British law to the effect that a man has some peculiar right to resort to one particular part of the Empire as distinguished from other parts. He is free to move at will throughout the Empire, unless some law forbid him ; and this right he has by virtue of his natural liberty : Libertas natwralis est facultas ejus quod cuique facere libet nisi quod jure prohibetur (Bracton). It is a fundamental characteristic of British law that British subjects are free to act except so far as they are forbidden; they are not for- bidden to act except so far as they are allowed. If the argument of the respondent's counsel were urged against the exclusion of any British subjects from Australia, I could understand it. It might be urged that Parliament cannot be supposed to have meant to interfere with the right of all British subjects to go and come within the Empire. But the Court has already decided that the Act does apply so as to exclude even British subjects: Attorney-General for the Commonwealth v. Ah Shewng (2); and see. 8 of the Act shows that when Parliament does not mean to affect British subjects it says so expressly. If the respondent's theory is to be deduced from the nature of

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Act, that Parliament, in providing against undesirable immigra- tion, meant to make any distinction between those born and those not born in Australia. The object of Parliament was simple and intelligible, and irrespective of considerations of birth. It was to keep persons from making their home in Australia who suffer from loathsome diseases, who are economically helpless, who are unfitted to blend with our civilization, &., just as the object of quarantine laws is to keep persons from mixing with the people if they have or may have some infectious disease or the germs thereof. Why should Parliament allow a leper in who comes from a 50 years' residence in China for the mere reason that he first drew his breath on Thursday Island? If this respondent is not an immigrant, then if A is a Malay half-caste, born near a pearl fishing station in Western Australia, goes at six months old to Saigon, lives there to the age of 50, developes leprosy, he cannot be kept out. If the respondent is not an immigrant, then if B is born of Japanese parents in Sydney Harbour during a stay of a vessel there, goes forthwith to Singapore, becomes at maturity a prostitute, she cannot be kept out. If this respondent is not an immigrant, then if C is born of British parents in Australia, goes to South Africa and settles there for 20 years, and afterwards wants to come back, he cannot be aided out of funds appropriated for the encouragement of immigration. If the respondent is right, the people who went to Paraguay, to what was called "New Australia," could not have been helped to come back as immigrants. If the respondent is right, then if D. is born in Canada, goes forthwith to the United States, lives there till 35, then goes to Victoria, lives there for 10 years, then goes to settle on land which he takes up in West Canada, Australia cannot treat him as an emigrant, or Canada as an immigrant. If the respondent is right, then if he were penniless, and likely to become a charge on the State, he could not be kept out of Australia, even if sent here by Chinese officials. For my part, I can see no more reason for implying an exception in favour of persons who happen to have been born in Australia from the pro- visions of Acts as to immigration than for implying an exception

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Judgment (243 paragraphs)