Ah Yin v Christie - [1907] HCA 25

ON APPEAL FROM A COURT OF GENERAL SESSIONS Prohibited immigrant-Infant-Domicile of father in Australia - Immigration

Restriction Act 1905 (No. 17 of 1905), sec. 4-Immigration Restriction Act 1901 (No. 17 of 1901), sec. 3. MELBOURNE,

The fact that the father of an infant, born out of Australia, and who has June 20, 21,

never been in Australia, is domiciled in Australia is irrelevant to the question whether that infant on coming to Australia is a prohibited immigrant within the meaning of the Immigration Restriction Acts 1901-1905.

APPEAL from Court of General Sessions, Melbourne.

Ah Yin was, on the information of John Mitchell Christie, at the Court of Petty Sessions, Melbourne, convicted for that he, being a prohibited immigrant, did enter the Commonwealth in contravention of the Immigration Restriction Acts 1901-1905. Ah Yin thereupon appealed to the Court of General Sessions. It appeared that Ah Yin and Ah Chung, aged respectively 15 and 17 years, arrived in Melbourne by the Taiyuan from China. Judge Molesworth, who presided in the Court of General Sessions,

4 CLR 1429

found the following facts:-That Ah Yin and Ah Chung were the sons of Loo Loon Hock and Ah Sim, to whom Loo Loon Hock was married in China in May 1886 according to the laws in force in China, and who died about May 1906, and that Loo Loon Hock had not married any other woman; that Loo Loon Hock was a native of China, which was his domicile of origin, came to Melbourne and settled there in 1895, and having gone on a holi- day trip to China, returned to Victoria about May 1905, intend- ing to make Australia his home and to become domiciled there for the rest of his life; that Loo Loon Hock and his two sons desired that those sons should make Australia their permanent home, and that Loo Loon Hock desired to bring his third son to Victoria if allowed to do so; that Ah Yin and Ah Chung each failed to pass the education test under the Immigration Restric- tion Acts 1901-1905, and were properly convicted. The appeal of Ah Yin was therefore dismissed and his conviction confirmed.

Ah Yin now appealed to the High Court. Arthur, for the appellant. If the appellant is domiciled in Victoria, he is not an immigrant within the meaning of the Immigration Restriction Acts 1901-1905, and those Acts do not apply to him: Ah Sheung v. Lindberg 1. This question was left open by this Court in Attorney-General for the Common- wealth v. Ah Sheung 2. The appellant is domiciled in Victoria because his father is domiciled there. The rule is stated in Dicey's Conflict of Laws (ed. of 1896), p. 120, thus :- The domicile of a legitimate or legitimated minor is, during the life- time of his father, the same as, and changes with, the domicile of his father." Urquhart v. Butterfield 3 Ryall v. Kennedy 4 Lamar v. Micou 5. This principle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1907] HCA 25
Decision Date: 26 June 1907

CaseChat Overview and Summary

The appellant, Ah Yin, a fifteen-year-old boy born in China, appealed to the High Court of Australia following his conviction as a prohibited immigrant for entering the Commonwealth in contravention of the *Immigration Restriction Acts 1901-1905*. The conviction had been upheld by the Court of General Sessions in Melbourne. Ah Yin's father, Loo Loon Hock, a Chinese national, had established a domicile of choice in Australia, intending to make it his permanent home. The appellant argued that because his father was domiciled in Australia, and as a minor his domicile followed that of his father, he too was domiciled in Australia and therefore not an immigrant subject to the Act.

The central legal issue before the High Court was whether the domicile of a father in Australia conferred upon his minor son, born overseas and never previously in Australia, the status of an Australian resident, thereby exempting him from the operation of the *Immigration Restriction Acts*. Specifically, the Court had to determine if the legal principle that a minor's domicile follows that of their father could override the provisions of the immigration legislation, which defined prohibited immigrants based on criteria such as failing a dictation test.

The High Court unanimously dismissed the appeal, holding that the domicile of a father in Australia was irrelevant to whether his infant son, born abroad, was a prohibited immigrant. The Court reasoned that the right to enter a country is a matter of political status, not civil status, and is a sovereign prerogative that can be regulated by statute. The *Immigration Restriction Acts* were designed to control entry into the Commonwealth, and the privileges conferred by the Act were personal. The Court found that the Act did not recognise a derivative domicile as a basis for entry, and that the exceptions previously allowing wives and children to accompany non-prohibited immigrants had been repealed, reinforcing the personal nature of the immigration privilege. Therefore, despite the potential hardship, Ah Yin, having failed the dictation test, was correctly classified as a prohibited immigrant.

Orders