Donohoe v Wong Sau - [1925] HCA 6

WONG SAU

ON APPEAL FROM A COURT OF QUARTER SESSIONS OF Immigration-Immigrant-Chinese born in Australia-Person returning to home in

Australia-Marriage to Australian-Immigration Act 1901-1920 (No, 17 of 1901-No. 51 of 1920), sec. 3. SYDNEY, April 17.

Where a person born in Australia has left the Commonwealth, the question whether when he attempts to re-enter the Commonwealth he is an immigrant Isaacs, Higgins,

within the meaning of the Immigration Act 1901-1920 depends on whether he is as a fact coming back to Australia as to his home.

Potter v. Minahan, (1908) 7 C.L.R. 277, applied.

APPEAL from a Court of Quarter Sessions of New South Wales,

Lucy Wong Sau was prosecuted at the Central Police Court, Sydney, on the information of John Thomas Tamplin Donohoe, charging that she was a probibited immigrant within the meaning of the Immigration Act 1901-1920 in that within three years after she had entered the Commonwealth, having been required to pass the dictation test within the meaning of the Act, she failed to do so and was found within the Commonwealth in contravention of the Act.

36 CLR 405

At the hearing the following facts were deposed to :-The father of the defendant was On Hing, a native of China, who obtained a certificate of naturalization at Gulgong in New South Wales on 8th May 1875. On Hing owned certain land in New South Wales and carried on business at Gulgong as a storekeeper. On 12th January 1879 On Hing married Wah You, a native of China, at Sydney; and they lived at Gulgong, where the defendant was born on 20th March 1883. On Hing and his family belonged to the Church of England. In 1889 On Hing and his wife and some members of their family, including the defendant, went to China, he then being in ill health, and they lived at Goomfoo on land which belonged to him. His ill health continued, and he died in 1902. After his death the defendant continued to live at Goomfoo with her mother until the death of the latter about 1908, and, after her mother's death, with her brother and sister. About 1910 the defendant's birth certificate was procured for her and sent to her. In 1917 the defendant was married at Goomfoo to a Chinese named Wong Sau, who was a market gardener residing and domiciled in New South Wales and who had gone for a trip to China. The marriage was according to the Chinese custom, there being no English missionaries at any place nearer to Goomfoo than Canton and Hong Kong, a day's journey by steamer. Five months after the marriage Wong Sau returned to Australia. On 21st August 1924 the defendant arrived in Australia, and at that time could not speak English.

The Stipendiary Magistrate before whom the information was heard convicted the defendant and sentenced her to imprisonment for six months. The defendant appealed to the Court of Quarter Sessions at Sydney, which upheld the appeal and quashed…

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 Donohoe v Wong Sau

Details

AGLC: Donohoe v Wong Sau [1925] HCA 6
Case: [1925] HCA 6
Decision Date: 17 April 1925

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning the prosecution of Lucy Wong Sau, who was charged as a prohibited immigrant under the *Immigration Act 1901-1920*. The informant, John Thomas Tamplin Donohoe, alleged that Ms. Wong Sau failed to pass a dictation test within three years of entering the Commonwealth and was therefore in contravention of the Act. Ms. Wong Sau had been born in Australia in 1883 to a naturalised Australian father of Chinese descent and had left for China with her family in 1889. She remained in China until her arrival in Australia in 1924, by which time she could not speak English. A Stipendiary Magistrate convicted her, but the Court of Quarter Sessions of New South Wales upheld her appeal and quashed the conviction, leading to the informant's appeal to the High Court.

The central legal issue before the High Court was whether Ms. Wong Sau, having been born in Australia but having lived in China for most of her life and returning without speaking English, was an "immigrant" within the meaning of the *Immigration Act 1901-1920* upon her attempted re-entry into the Commonwealth. This required the court to determine the correct application of the test established in *Potter v. Minahan*, which posits that whether a person is an immigrant depends on whether they are returning to Australia as to their home, and are a constituent part of the Australian community.

The High Court, allowing the appeal, held that Ms. Wong Sau was indeed an immigrant. The court reasoned that while birth in Australia was a factor, it was not determinative. The crucial consideration, as articulated in *Potter v. Minahan*, was whether the individual was returning to Australia as their home and was a constituent part of the Australian community. The court found that Ms. Wong Sau's prolonged absence from Australia, her upbringing and education in China, her marriage to a Chinese national, and her inability to speak English indicated that she was not returning to Australia as her home. Therefore, she was considered an immigrant subject to the provisions of the Act.

The High Court discharged the judgment of the Court of Quarter Sessions and restored the judgment of the Stipendiary Magistrate. The Commonwealth was ordered to pay the costs of the appeal, pursuant to its undertaking.

Orders