1907. AH YIN V. CHRISTIE. found the following facts:-That Ah Yin and Ah Chung were H. C. OF A. the sons of Loo Loon Hock and Ah Sim, to whom Loo Loon Hock was married in China in May 1886 according to the laws in force in China, and who died about May 1906, and that Loo Loon Hock had not married any other woman; that Loo Loon Hock was a native of China, which was his domicile of origin, came to Melbourne and settled there in 1895, and having gone on a holiday trip to China, returned to Victoria about May 1905, intending to make Australia his home and to become domiciled there for the rest of his life; that Loo Loon Hock and his two sons desired that those sons should make Australia their permanent home, and that Loo Loon Hock desired to bring his third son to Victoria if allowed to do so; that Ah Yin and Ah Chung each failed to pass the education test under the Immigration Restriction Acts 1901-1905, and were properly convicted. The appeal of Ah Yin was therefore dismissed and his conviction confirmed. Ah Yin now appealed to the High Court. left Arthur, for the appellant. If the appellant is domiciled in Victoria, he is not an immigrant within the meaning of the Immigration Restriction Acts 1901-1905, and those Acts do not apply to him: Ah Sheung v. Lindberg (1). This question was open by this Court in Attorney-General for the Commonwealth v. Ah Sheung (2). The appellant is domiciled in Victoria because his father is domiciled there. The rule is stated in Dicey's Conflict of Laws (ed. of 1896), p. 120, thus:-" The domicile of a legitimate or legitimated minor is, during the lifetime of his father, the same as, and changes with, the domicile of his father." Urquhart v. Butterfield (3); Ryall v. Kennedy (4); Lamar v. Micou (5). This principle is applicable in determining the status of a person alleged to be an immigrant. The Court will recognize the appellant as being the legitimate son of Loo Loon Hock, for, although polygamy is permitted in China, Loo Loon Hock had only one wife. See Dicey on Conflict of Laws (ed. of 1896), pp. 626, 638; Hyde v. Hyde (6); Brinkley v. (1) (1906) V.L. R., 323; 27 A.L.T., 189. (2) 4 C. L.R., 949. (3) 37 Ch. D., 337, at p. 381. (4) 40 N. Y. Super. Ct., 347. 1907. H. C. OF A. Attorney-General (1); In re Bethell; Bethell v. Hildyard( 2); Encyclopedia of Laws of England, vol. v., p. 415; Eversley on Domestic Relations, 3rd ed., p. 481. AH YIN 2. CHRISTIE. June 26. [Counsel also referred to Lau Ow Bew v. United States (3); In re Look Tin Sing (4); In re Buchsbaum (5); Fong Yue Ting v. United States (6); Mayne's Commentaries on the Indian Penal Code, p. 316.] Bryant (with him Macfarlan), for the respondent. Prima fucie, any person, who has never been in Australia before and seeks to enter there, is an immigrant, and the onus is upon him to show that he is within the exceptions to the Immigration Restriction Acts. The act of entry constitutes the person an immigrant: Chow Quin v. Martin (7). Domicile has nothing to do with the political status of a person. As to the matters to which domicile is applied as a test, see Dicey's Law of Domicile, pp. 38, 40. The test whether a man is an immigrant must be capable of being applied immediately on his entry into the Commonwealth. There may be an exception from the Acts in favour of a person who has been a resident of one of the States, and has gone away temporarily with the intention of returning. But there is no exception which is based on domicile. Arthur in reply. Permission to a man to make his home in the Commonwealth involves permission to bring his wife and family there. The following judgments were read :— Cur, adv. vult. GRIFFITH C.J. The appellant, a boy of fifteen, who has been convicted on a charge of being a prohibited immigrant, was born in China of Chinese parents. His mother never left that country, but his father, before the birth of the appellant, came to Australia, afterwards visiting China on several occasions, the last of which was in 1903. He returned to Australia in 1906, where, as found (1) 15 P.D., 76. (2) 38 Ch. D., 220. (3) 144 U.S., 47. (4) 21 Fed. Rep., 905. (5) 141 Fed. Rep., 221. by the learned Chairman of General Sessions, he then acquired a domicile of choice. After his wife's death in 1906 he sent for his children. On these facts it is contended that the appellant also is a domiciled Australian, and is therefore not an immigrant within the meaning of the Immigration Restriction Acts 1901-1905. It is admitted that he is an alien. Reliance is placed on the doctrine that the domicile of an unmarried minor, if he is legitimate, follows and changes with that of his father, and, if he is illegitimate, follows and changes with that of his mother. For the purposes of argument it is assumed that the appellant is to be regarded as the legitimate son of his father, although the laws of China allow polygamy. There is no doubt that for certain purposes minors acquire what may be called a derivative domicile. It is not suggested that there is any hitherto recognized rule of international comity under which such a derivative domicile confers upon an alien a right to enter another country, but it is said that such a right necessarily follows from the principles of the law of domicile. The application of that law has, so far as I know, been confined to the determination of questions of civil status, questions of capacity to contract marriage, and questions of succession to personal property. The question involved in the present case is quite different. It is the question of the right of a stranger to claim admission to a foreign country. That is a matter depending upon political, not upon civil, status. See per Lord Westbury in Udny v. Udny (1) ). It is settled law, as pointed out by this Court in the case of Robtelmes v. Brenan (2), quoting the decision of the Judicial Committee in Attorney-General for Canada v. Cain and Gilhula (3), that one of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, and to annex what conditions it pleases to the permission to enter it, and to expel or deport him from the State at pleasure. The Commonwealth has under the Constitution power to exclude any person, whether an alien or not. The acquisition of a domicile of choice by a person coming (1) L.R. 1 H.L. Sc., 441, at p. 457. (2) 4 C. L.R., 395. (3) (1906) A.C., 542. H. C. OF A. 1907. AH YIN V. CHRISTIE. Griffith C.J. 1907. H. C. OF A. from abroad to any country depends, then, upon the permission given by that country to enter it and make it his home. When such domicile has been acquired, certain consequences follow as to him, and possibly as to those persons who, although absent, take a derivative domicile through him. AH YIN v. CHRISTIE. Griffith C.J. But these consequences are quite irrelevant to the question of the extent or conditions of the permission given to the particular person to enter and remain in the country. Permission given to a person to enter a country does not necessarily imply permission to his wife and family to enter the country. If it did, it would be necessary to exercise an extra degree of caution before admitting strangers to the privilege of entrance. Whether such permission shall be given or not, and on what conditions it shall be given, if at all, are matters entirely within the discretion of the supreme power of the State, and the exercise of that discretion cannot be reviewed by a Court of law. No rule of international law or comity has been suggested which controls the discretion of the supreme power in this respect, and such a rule, even if theoretically recognized, would obviously be incapable of enforce ment. The exercise of the discretion may, and probably must, be regulated by Statute; but, so far from the Commonwealth legislature recognizing any such rule as that now suggested, the exceptions in favour of the wives and families of immigrants, which were contained in the Act of 1901, have been repealed, and there is nothing in the law as it now stands to suggest that the permission granted to any person to enter the Commonwealth extends beyond himself personally. I think that any person who seeks to enter the Commonwealth from abroad is, prima facie, an immigrant within the meaning of the Act. It is unnecessary to consider the question whether a resident of the Commonwealth returning after a short absence is an immigrant, or the other questions left undecided in the case of Attorney-General for the Commonwealth v. Ah Sheung (1). It is sufficient to say that the appellant cannot bring himself within any recognized rule that would prevent him from being (1) 4 C.L.R., 949. regarded as an immigrant, and therefore, on failure to pass the H. C. OF A. statutory test, as a prohibited immigrant. It is, no doubt, a very hard case, but our duty is to declare, and not to make the law. The appeal must be dismissed. BARTON J. In the case of Robtelmes v. Brenan (1) the Chief Justice laid it down as incontrovertible that it is "an essential prerogative of a sovereign State to determine who shall be allowed to come within its dominions, share in its privileges, take part in its government, or even share in the products of the soil." In the same case (2) I put the matter in the words of Mr. Secretary Marcy, as quoted with approval in the judgment of the majority of the Supreme Court in Fong Yue Ting v. United States (3), viz.: Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war," and I added (4), " the right to exclude is involved in the right to regulate immigration." And the Court held that the right to legislate for deportation, which is the complement of the right to legislate for exclusion, was conferred upon the Commonwealth by paragraph 27 (among others) of sec. 51 of the Constitution. It is true that the case of Robtelmes v. Brenan (5) was that of an alien-a Pacific Islander; but it is not possible to read the reasoning of the members of this Court as reported, without coming to the conclusion that it covers the right to deal by legislation with all the conditions upon which persons of communities other than our own may be allowed to enter this country or to remain within its bounds. The power has been exercised by the Immigration Restriction Acts 1901-1905, and also by the Contract Immigrants Act 1905, and the operation of this legislation is not confined to aliens. The appellant, a Chinese youth, has been convicted of having entered the Commonwealth in contravention of the Immigration Restriction Acts, being a "prohibited immigrant." Prima facie he is such, as a person attempting to enter Australia for the first (1) 4 C.L.R., 395, at p. 401. (2) 4 C.L.K., 395, at p. 413. (3) 149 U.S., 698. VOL. IV. (4) 4 C.L.R., 395, at p. 415. 92 1907. AH YIN บ. CHRISTIE. Griffith C.J. |