R v Davey; Ex parte Freer

This case concerned an application for a writ of habeas corpus brought on behalf of Mabel Magdalene Freer, who was detained on board the S.S. Awatea by customs officers and the Commonwealth of Australia. The respondents sought to justify her detention on two grounds: first, an authority issued by the Minister under section 3J of the *Immigration Act 1901-1935*, and second, that Mrs. Freer was a prohibited immigrant by reason of failing to pass a dictation test under section 3(a) of the same Act, as enforced by section 14.

The court was required to determine whether the Minister's authority under section 3J provided a lawful basis for detention, and whether Mrs. Freer had indeed failed to pass the dictation test as prescribed by the *Immigration Act 1901-1935*. Specifically, the court had to consider who had the authority to select the language for the dictation test and whether Mrs. Freer's actions constituted a "failure" to pass the test. The court also considered the scope of its jurisdiction in reviewing executive decisions regarding immigration.

Evatt J. held that the power conferred by section 3J was intended to be exercised solely on grounds relating to health and did not grant the Minister an absolute power to prevent an immigrant's entry. Regarding the dictation test, the court found that, despite amendments to the Act, the officer or authorised representative, not the immigrant, was responsible for selecting the language. The court determined that Mrs. Freer had failed the dictation test within the meaning of section 3(a) because she deliberately prevented herself from hearing the dictation in Italian, and her refusal to attempt the test in that language, or any other save English, constituted an objective failure. The court affirmed that it had no authority to review the Minister's decision on the suitability or desirability of an immigrant.

Consequently, the detention of Mrs. Freer was found to be lawful, and the order nisi for habeas corpus was discharged.