Attorney-General (Cth) v Ah Sheung [1906] HCA 44

4 CLR} OF AUSTRALIA. 949

[HIGH COURT OF AUSTRALIA.}

THE ATTORNEY-GENERAL FOR THE ) ioelp ig

COMMONWEALTH . : r i AND AH SHEUNG . e 7 ' . " . ReEspoNDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Immigration Restriction Act 1901 (No. 17 of 1901)—Prohibited immigrant — H. C. or A. Application of Act to Australian citizen—The Constitution (63 & 64 Viet. c. 12), 1906. sec. 51—Habeas corpus—Jurisdiction of High Court. _

'ih re ea 5 MELBOURNE, 'The High Court has jurisdiction to entertain an appeal from the Supreme 7,,...

Court of a State in a case of habeas corpus.

Semble, there is no Australian nationality as distinguished from British nationalty, so as to limit the power of the Commonwealth under see. 51 of Cees the Constitution to exclude persons from Australia. O'Connor J.

Quire, whether the power of the Parliament under sec. 51 of the Constitu- tion to deal with ' immigration " extends to the case of Australians absent from Australia ona visit animo revertendi.

Appear from the Supreme Court of Victoria.

On 30th March 1906, a writ of habeas corpus issued out of the Supreme Court of Victoria, commanding Charles Lindberg, captain of the ship Zsinan, then in the River Yarra, in the State of Victoria, to have the body of Ah Sheung, a Chinese, before a Judge of that Court, together with the cause of his being taken and detained by the said Charles Lindberg. To this writ Charles Lindberg made the return that Ah Sheung was a prohibited immi-

950 HIGH COURT (1906.

H.C. oF A. grant within the meaning of the Immigration Restriction Acts

ita 1901-1905, inasmuch as he was a person who, on 28th Mareh Arrorsey. 1906, failed to pass the dictation test, within the meaning of, and Gaerean won as required by, such Acts, and, that, as master of the ship 7'sinan

weatra he (Lindberg) was liable to a penalty of £100 if Ah Sheung, being a prohibited immigrant, entered the Commonwealth contrary to such Acts, and was authorized and required by such Acts to pre- vent, and did prevent Ah Sheung, as such prohibited immigrant, from entering the Commonwealth from such ship ; that, after the issue and service upon him (Lindberg) of the writ, namely on 30th March 1906, he did, by arrangement with the solicitor acting for Ah Sheung, and with the concurrence of the Commonwealth authorities, because his ship was about to clear for China ports, allow Ah Sheung to land from the ship, and that Ah Sheung was immediately thereafter arrested by an officer of Customs and charged with being a prohibited immigrant offending against such Acts, and that such charge was at the time of the return still pending, Ah Sheung having been released and being on bail.