Jerger v Pearce

In this matter before the High Court of Australia, Charles Jerger, the plaintiff, sought an interim injunction to prevent his deportation from Australia by the Honourable George Foster Pearce, the Minister of State for Defence. Jerger, born in Germany to German parents, claimed to be a naturalized British subject and therefore not subject to deportation as an alien. The defendant argued that Jerger was an alien and subject to deportation under the Aliens Restriction Order 1915.

The court was required to determine two primary legal issues. Firstly, whether Jerger could establish British nationality under section 10 of the Imperial Naturalization Act 1870, specifically by virtue of his mother's remarriage to a naturalized British subject. Secondly, if that avenue failed, whether Jerger could establish British nationality under section 10 of the Commonwealth Naturalization Act 1903-1917, based on his mother's marriage to a person naturalized under Commonwealth or State law.

The Court found that Jerger could not rely on section 10(5) of the Naturalization Act 1870 because neither his father nor his mother, while a widow, had obtained a certificate of naturalization in the United Kingdom. The Court interpreted "obtained a certificate of naturalization" strictly, distinguishing it from merely becoming a subject through marriage. Furthermore, the Court held that Jerger could not establish nationality under section 10 of the Commonwealth Naturalization Act 1903-1917. The Court reasoned that the phrase "under the law of the Commonwealth or of a State" in that section referred to laws enacted by the legislative authority of the Commonwealth or a State, and therefore did not encompass naturalization under the Imperial Naturalization Act 1870, even if that Act was in force in Australia.

Consequently, the Court concluded that Jerger had failed to establish that he was a British subject. The application for an interim injunction was dismissed with costs.