acquit-Immigrant landed under restraint of law-" Immigrant," meaning of- Unconstitutional-Prior domicil in Commonwealth-Immigration Restriction Act 1901 (No. 17 of 1901), secs. 3, 5, 7 - -Colonial Laws Validity Act (28 &29 Vict.), c. 63, see. 2.

The test whether a previous dismissal is a bar to a further prosecution is whether the evidence necessary to support the second prosecution would have been sufficient to procure a legal conviction on the first.

It is therefore no defence to a prosecution for "being a prohibited immigrant found within the Commonwealth* on 2nd June, that the accused was previously convicted on a similar charge laid as of 13th January, and that such conviction was quashed.

It is for the officer, and not the immigrant, to select the European language for the purpose of applying the test under sec. 3 (a) of the Immigration Restriction Act 1901.

3 CLR 650

Where prohibited immigrants were discovered as stowaways, arrested on board ship at Fremantle, and brought ashore in custody, it is no defence to a subsequent prosecution for being prohibited immigrants found within the Commonwealth, that they were brought ashore in the custody of the law.

In order to prove that a person who enters the Commonwealth is an

CHOW QUIN

"immigrant" within the meaning of the Immigration Restriction Act 1901, it is not necessary to prove that he intended to remain in the Commonwealth for any definite period.

Under the Act of 1901, a person formerly domiciled in the Commonwealth might be convicted of being a prohibited immigrant if he did not satisfy the proper officer that he had been so domicled.

APPEALS from orders of the Police Court, holden at Perth, Western Australia.

In the beginning of January 1905, the appellants, all of whom were Chinese, were discovered by the Customs authorities as stowaways on board the S.S. Charon. They were thereupon arrested and brought before the Police Court at Fremantle charged with being prohibited immigrants found within the Common- wealth on 13th January in contravention of the Immigration Restriction Act 1901. They were sentenced to imprisonment by the magistrate, but the conviction was subsequently quashed by Burnside J. on the ground that the test was not properly applied. Immediately after release, they were re-arrested, subjected again to the test, and on failure to pass it, were taken to the Police Court at Perth and charged with being guilty of a similar offence on 2nd June. They were convicted and sentenced to two months imprisonment. Appeals against the convictions were made to the Supreme Court of Western Australia, and it was there ordered that the questions raised in the appeals should be argued before the High Court.

Le Mesurier, for the appellants. The test clause in the…

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.

Continue reading Chia Gee v Martin

Details

AGLC: Chia Gee v Martin [1905] HCA 70
Case: [1905] HCA 70
Decision Date: 20 October 1905

CaseChat Overview and Summary

The High Court of Australia considered the case of *Chia Gee v Martin*, brought by the appellant, Chia Gee, against the respondent, Martin. The dispute concerned Chia Gee's immigration status and his right to remain in the Commonwealth, arising from his arrival and subsequent detention under the *Immigration Restriction Act 1901*.

The central legal issues before the Court were whether the education test prescribed by the Act, specifically the language in which it was to be administered, was valid, and whether Chia Gee was entitled to be admitted to the Commonwealth by reason of a prior domicile. The Court also had to consider the applicability of the doctrine of *autrefois acquit* and the definition of "immigrant" within the context of the Act.

The Court held that the *Immigration Restriction Act 1901* was a valid exercise of the Commonwealth's legislative power. Griffith C.J. reasoned that the Act did not contravene the *Colonial Laws Validity Act* and that the power to select the language for the dictation test was vested in the Minister, not the officer administering the test. Barton and O'Connor JJ. concurred, finding that the Act was constitutional and that Chia Gee, having not previously resided in the Commonwealth, was an "immigrant" subject to its provisions. The Court further determined that the principle of *autrefois acquit* did not apply in this instance, as Chia Gee had not been acquitted of any offence.

Consequently, the appeal was dismissed, and the orders of the lower court upholding Chia Gee's detention were affirmed.

Orders