Attorney-General for the Commonwealth v Ah Sheung

[1906] HCA 44

4 C.L U.] OF AUSTJIALIA.

949

[HIGH COURT OF AUSTRALIA.]

THE ATTORNEY-GENEKAL FOR THE j

A p p e l l a n t ;

COI\I MON WEALTH . . . . )

'

AH 8HEUNG

R e s p o n d e n t .

ON a p p e a l f r o m t h e s u p r e m e c o u r t

o f

VICTORIA.

Immigration Rextrictiou Act 1901 (Xo. 17 o f 1901) — Prohibited immiijrant— H. C. of A.

Application o f Act to Australian citizen— The Constitution (63 A-64 Viet. c. 12), 1906.

sec. 51—Habeas corpus—Jurisdiction o f Hiijh Court.

'— .— '

M k l b o ik n e ,

Tile High Court has jurisiliction to entertain an appeal from the Supreme

.tj

Court of a S tate in a case of habeas corpus.

l>p.

Sanble, there is no Australian nationality as distinguished from British

Griffith C.J.,

nationalty, so as to lim it the power of the Commonwealth under sec. 51 of Barton and

the Constitution to e.xolude persons from Australia.

O'Connor JJ.

Qiitcre, 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 on a visit animo rerertendi.

A p p e .al from the Supreme Court of Victoria.

On .‘50th March 190(5, a writ of habeas corpus issued out of the Supreme Court of Victoria, commanding Charles Lindberg, captain of the ship Tsinan, then in the River Yarra, in the State of Victoria, to have tlie body of Ah Sheung, a Chinese, before a Judge of that Court, togetlier 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-

950 HIGH COURT

[1906.

H. C. OF A. grant within the meaning of tlie Im m igration Restriction Acts

1901-1905, inasmuch as he was a person who, on 28tli March

A ttorney- 1906, failed to pass the dictation test, within the meaning of, and

Oeneral fo

O enekal for

required by, such Acts, and, that, as master of tlie sliip Tsinan

THE Common-

WEALTH

V.           he (Lindberg) was liable to a penalty of £100 if Ab Sheung, being

A h S hfun’c,. a prohibited immigrant, entered tlie Commonwealth contrary to

such Acts, and was authorized and recpiired by sucli Acts to pre­ vent, and did prevent A.li Sheung, as sucli 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 bĵ 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 3"ears, and returned in the Isinan, 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 liis release : Ah Sheung 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.

(I) (1906) V.L.K., .•323 ; 27 A .L .T., 189.

4 C.L.R.]

951

OF AUSTRALIA.

Appeals were brou^lit to the Higli Court both fi'om the dis- H-

ini.ssal of the information and from tlie judgment of Cussen J.

in the former case the appeal was allowed and the case was

a t t o r s e y -

remitted to the magistrate for a re-hearing: Christie v.

Sheung

( 1 ) .

w ea lth

In the appeal from the judgment of Cussen J., leave was granted

to the Attorney-General for the Commonwealth to intervene as

appellant.

A h S h e c x g .

Bryant for the appellant.

II. Barrett and Arthur for the respondent.

Cur. adv. vult.

The judgment of the Court was read by

G r i f f i t h C.J.

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 tliat 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 tlie moment a neutral word—who are merely absent from Australia on a visit animo rerertendi. 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

(1) 3 C .L .R ., 99S.

952 HIGH COURT

[1906.

H. C. OF A. Parliament has power, as an incident of its power to regulate

immigration, to prescribe tests for determining whether a person

At t o r s e v - seeking to enter the Commonwealth falls in fact witliin the

exception, and incidentally to appoint a special WEALTH tribunal to determine the question; whether it did so bj'’ the Act

A h S h e u n g . of 1901, and, if so, whether the provisions of that Act are applic­

able to the present ease, are all Jiiattei's 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 further consideration.

On the further hearing of the information above referred to, the identity between Ah Sheung, the defendant, and Ah Sheung, a naturalized 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, Suhelberg, Melbourne.

B. L.