Persons charged as prohibited immigrants under the Immigration Act 1901-1930 may prove arrival in Australia before the establishment of the Commonwealth notwithstanding s 5(3A).
Ali Abdul Defendant, Appellant; and Maher Informant, Respondent.
H C of A
14 December 1931
Rich, Evatt and McTiernan JJ.
Wells, for the appellant.
E. M. Mitchell K.C. (with him Bowie Wilson), for the respondent.
The Court delivered the following judgment:—
Rich, Evatt and McTiernan JJ.
In this case the appellant was convicted by the Magistrate of being a prohibited immigrant, within the meaning of the Immigration Act 1901-1930, on the ground that he was an immigrant who had evaded an officer since the Immigration Restriction Act 1901, and, at a time thereafter, was required to pass the dictation test and failed to do so. The Magistrate convicted the appellant and sentenced him to six months' imprisonment with hard labour.
From that conviction the appellant appealed to the Quarter Sessions, and the learned Chairman of the Quarter Sessions upheld the conviction. The case for the prosecution was not rested on sec. 5 (3) and (3A) alone, but evidence was given to show that the appellant was an immigrant within the meaning of the Act, and the appellant led evidence in answer to show that he was not. The learned Chairman of Quarter Sessions was prepared, we gather from his judgment, to find that the appellant had arrived in Australia before the establishment of the Commonwealth, but was of the opinion that by the operation of sub-sec. 3A he was precluded from so finding. In our opinion, sub-sec. 3A of sec. 5 does not operate as a legal obstacle in the way of a person who satisfies the proper tribunal that he arrived in a colony before the establishment of the Commonwealth. The learned Chairman of the Quarter Sessions treated the sub-section as such an obstacle. In our opinion he was wrong in doing so. That reduces the case to a question of fact. The learned primary Judge had the advantage of seeing the witnesses, and he believed the independent testimony that was given before him that the appellant came to Australia before the establishment of the Commonwealth. On the whole, we accept that view and, accepting that view, we shall allow the appeal with costs, quash the conviction, and order the appellant to be discharged.
Order made accordingly.
Solicitor for the appellant, J. B. Jackson.
Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.