Attorney-General (Cth) v Ah Sheung [1906] HCA 44; (1906) 4 CLR 949 (29 June 1906)

HIGH COURT OF AUSTRALIA

The Attorney-General for the Commonwealth Appellant; and Ah Sheung Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

29 June 1906

Griffith C.J., Barton and O'Connor JJ.

Bryant for the appellant.

H. Barrett and Arthur for the respondent.

The judgment of the Court was read by

Griffith C.J.

Barton and O'Connor JJ.

We have no doubt as to the jurisdiction of the High Court to entertain this appeal. The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament, and no exception is made by the Judiciary Act in cases of habeas corpus.

We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration" as used in sec. 51 of the Constitution admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.

But we think that there is much force in the view which commended itself to Cussen J., although not argued before us, that the term "immigration" does not extend to the case of Australians—to use for the moment a neutral word—who are merely absent from Australia on a visit animo revertendi. Who in this view should be considered Australians, so as not to be "immigrants" on their return; whether the right to admission should depend on domicil in the ordinary legal acceptation of that term, or on bonâ fide residence; whether the Commonwealth Parliament has power, as an incident of its power to regulate immigration, to prescribe tests for determining whether a person seeking to enter the Commonwealth falls in fact within the suggested exception, and incidentally to appoint a special tribunal to determine the question; whether it did so by the Act of 1901, and, if so, whether the provisions of that Act are applicable to the present case, are all matters deserving serious consideration. The question of the respondent's identity, upon which his actual liability to be deported depends, even in the most favourable view of the law, is still undetermined. If it should become necessary, we shall desire further argument on all these points. The case will therefore remain on the paper for further consideration.

On the further hearing of the information above referred to, the identity between Ah Sheung, the defendant, and Ah Sheung, a naturalized subject of the King in Victoria, was established. The appeal from the decision of Cussen J. was then abandoned.

Solicitor, for appellant, Powers, Commonwealth Crown Solicitor.

Solicitor, for respondent, Sabelberg, Melbourne.