Donohoe v Wong Sau

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.