Ah You v Gleeson [1930] HCA 25; (1930) 43 CLR 589 (25 August 1930)

HIGH COURT OF AUSTRALIA

Ah You Defendant, Appellant; and Gleeson Informant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

25 August 1930

Rich, Starke and Dixon JJ.

Shelton, for the appellant.

Ham K.C. (with him Dixon Hearder), for the respondent.

Shelton, in reply,

The Court delivered the following written judgment:—

Aug. 25

Rich, Starke and Dixon JJ.

On information laid by Detective Inspector Gleeson, the defendant Ah You, was charged for that being an immigrant he was on 21st March 1930 required and failed to pass the dictation test within the meaning of the Immigration Act 1901-1925, and was a prohibited immigrant found within the Commonwealth in contravention of the Act. And the information contains the following averment: "And the said informant avers that the said defendant is an immigrant who has evaded an officer." Ah You was convicted and sentenced to six months' imprisonment, and on appeal to the Court of General Sessions this conviction was upheld. An appeal has been brought by special leave to this Court.

The learned Chairman of the Court of General Sessions found that Ah You was resident in Australia in 1906, and had remained here since that date. On the evidence, we are of opinion that this finding cannot be disturbed. It is not clear whether the Chairman arrived at a finding upon the question when Ah You entered the Commonwealth. The evidence given in the case suggests that he did so about the year 1906, and after the establishment of the Commonwealth and the passing of the Immigration Restriction Act of 1901. If so, the argument that the constitutional power to make laws for the good government of the Commonwealth with respect to immigration and emigration did not extend to persons who were members of the Australian community before the establishment of the Commonwealth, would be irrelevant. Ah You would be an immigrant into the Commonwealth. We proceed to consider the case upon this assumption.

Upon this footing, if the provisions of secs. 7 and 5 of the Immigration Act 1901-1925 govern this case, the decision of this Court in Williamson v. Ah On[1] clearly supports the conviction. Now sec. 7 provides that every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of the Act shall be guilty of an offence. But was Ah You a prohibited immigrant? The answer depends upon the relevant provisions of the Act affecting his case. In Williamson v. Ah On[2] it is said that sec. 5 (1) (a) was in force when Ah On entered the Commonwealth, and that that was the relevant provision affecting his case. This statement seems to be a slip, for the section, in that form, did not come into force until 1924 (No. 47 of 1924), whereas Ah On entered in 1911. But we adhere to the opinion expressed in Williamson v. Ah On[3] that sec. 5 (1) (a), as it now stands in the reprint of the Immigration Act 1901-1925 only operates and applies to immigrants who enter Australia after the date of its enactment. If Ah You entered Australia between 1901 and 1906, then sec. 5 (1) (a), as it now stands, does not govern his case. On this view, the relevant provision governing his case may be found in the reprint of the Immigration Restriction Act 1901-1908 (Sess. Vol. No. VII., 1908). It is as follows:—"Sec. 5 (1) Any immigrant who evades an officer or who enters the Commonwealth at any place where no officer is stationed may if at any time thereafter he is found within the Commonwealth be required to pass the dictation test, and shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act. (2) Any immigrant may at any time within one year after he has entered the Commonwealth be required to pass the dictation test, and shall if he fails to do so be deemed a prohibited immigrant offending against this Act. (3) In any prosecution under the last preceding sub-section, the averment of the prosecutor contained in the information that the defendant has entered the Commonwealth within one year before his failing to pass the dictation test shall be deemed to be proved in the absence of proof to the contrary." Sub-sec. 3 was omitted in 1910, and a new sub-section inserted in lieu thereof. Sec. 5 was otherwise amended in 1910, 1912, and 1920; but these amendments are not material to the matter now in hand. In 1924 (1924 No. 47) the section was amended by omitting sub-sec. 1 and the new sub-sec. 3 thereof, and inserting in their stead the provisions now appearing in the 1901-1925 reprint of the Immigration Act. Thus the former provisions were repealed, but the repeal does not affect their previous operation, or anything duly done or suffered under the provisions so repealed (Acts Interpretation Act, sec. 8). If Ah You were a prohibited immigrant under the repealed provisions, then no doubt he would be caught by the provisions of sec. 7 of the Immigration Act 1901-1925, for sub-sec. 1 of that section has been continuously in force since the passing of the original Immigration Act in 1901. Returning now to the Immigration Restriction Act 1901-1908, was Ah You a prohibited immigrant by virtue of the provisions then in force? The only provision that can be relied upon is sec. 5 (1), which enacts that any immigrant who evades an officer may, if at any time thereafter he is found within the Commonwealth, be required to pass the dictation test, and shall if he fails to do so, be deemed a prohibited immigrant offending against the Act. The defendant here certainly failed to pass a dictation test. But that test can only be applied, under the 1901-1908 Acts, to an immigrant who has evaded an officer, and no evidence has been adduced that Ah You evaded an officer: the only evidence relied upon is the averment in the information, and no presumption arises from it, because the 1901-1908 Acts contain no provisions such as are found in the 1901-1925 Acts, sec. 5, sub-secs. 3 and 3A, and because the provisions of sub-secs. 3 and 3A are expressly confined, by the words "the last two preceding sub-sections," to prosecutions under sub-secs. 1 and 2 of sec. 5 of those Acts, and only relate, as already stated, to immigrants the date of whose alleged evasion of an officer is after the date of the passing of the 1924 Act.

The result is that the conviction of Ah You should be quashed.

Appeal allowed. Order of the Court of General Sessions set aside. Conviction quashed. Discharge Ah You from custody under the aforesaid conviction. The respondent to pay the costs of Ah You in this Court and in the Courts below.

Solicitor for the appellant, L. W. Hartnett.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.

[1] [1926] HCA 46; (1926) 39 C.L.R. 95.

[2] (1926) 39 C.L.R., see p. 129.

[3] (1926) 39 C.L.R., at p. 129.