FULL COURT

Dominion, Volume 12, Issue 234, 27 June 1919, Page 5

FULL COURT

A CHINESE PUZZLE CHILDREN AND THE POLL-TAX The Full Court had before it an intricate matter under the Immigration Restrictions Act, 190 S. On the bench were His Honour the Chief Justice (Sir Robert Stout, Mr. Justice.Cooper, Mr. Justice Sim, and Mr. Justice Herdman. This was an originating summons to determine Whether children born of Chinese parents in New Zealand and visiting China for the purpose of education are subject to the poll tax of .£IOO and the educational test provided under the Immigration Act, 1908, on returning to New Zealand after' more than four years' absence.

The plaintiff was Joe- Luin, storekeeper, of Wellington, and the Attorney-General of New Zealand was the defendant. Sir John Findlay, K.C., with him Mr. A. dp B. Brandon, appeared for - Joo Luin, and Sir John Salmond, K.C., for the At-torney-General.

The following facts were agreed to by the parties:—That Joe Luin, a Chinese resident in New Zealand, but not naturalised, married in .New Zealand, on November 28. 1905, a Chinese woman named Chu Ah Nui, and six children had been born in Wellington. Luin was now about to visit China, taking with him his infant children, the eldest of whom was about twelve and a half years, to be educated in their native tongue. On applying to the Customs Department (he plaintiff was informed that unless the the children returned to New Zealand within four years after the registering of their names in accordance with* section 2 oi the Immigration Restriction Act, 1908. they would not lie allowed to land in the Dominion except on payment of tile poll-lax of ,£IOO and the passing of ihe tests imposed by sections 31 and 42 respectively of the same Act. It was not improbable that circumstances would arise to keep the children in China for longer than four years. The Court was asked, on an originating summons, for an order interpreting the Immigration Restrictions Act, 1908, and, in particular to determine:— fl) Whether a person born in New Benin nd of Chinese parents not. naturalised under the Aliens Act, 1908, and leaving New Zealand while an infant, and returning to New Zealand while still an infant to rejoin his or her parents, poll tax will be payable in respect of these persons.; " (a) If such person complies with the reauii'oments of sub-section 1 (a) of section 2 of the Immigration Restrictions Act, 1908. (h) If such person complies with all the requirements of the sub-section except the requirements as to return within four years. < . (c) If such person fails to. comply with any of the requirements of the said subsection. (21 Whether in the event of such person leaving New Zealand while an infant and remaining offer twenty-one years of age without having renounced or lost his or her British nationality, poll tax will be payable in respect of such person. (a! If such person complies with the requirements of sub-section 1 (a) of section 2 of the Immigration Restrictions Act. 1908.

(b) If such person complies with tho requirements of the sub-section except the requirements as to return within four years.

(c) If such person fails to comply with nnvof the requirements of the sub-sec-tion. .. / The whole question'.turned on the interpretation of the words of section 2 of the Immigration Act, 1908.

Sir John findlay contended that tho children riiu'st be regarded" a& : naturalborn British subjects. It would be absurd to hold, that .children born-in this country, who happen, to go to China for education, on return 6honld., be regarded as Chinese immigrants, subject to poll tax. A'literal interpretation of the Act. he.contended, .would mean-a great hardship/ <. '

-In replying,' Sir John Salmond said lliore ivas no hardship The Iramigration Restriction Act provides for full discretionary power for exemption in proper cases. These children might be away for. twenty years,- educated in the Chinese tongue, in Chinese, thoughts and habits, and for all practical purpose.? they would be Chinese. The matter of 'discretion rested with th? Minister of Customs. It might be argued that the word "naturalised" mentioned in the Act included the natural born. He maintained that this was not so; the word "naturalised" .in the.Act had a special legal meaning. It meant the transformation of an alien into a British subject. The Chief Justice: A natural-born subject should surely have more rights than a naturalised subject? Sir John Salmond said there was an express exemption of a naturalised subject, and he contended that it did not include the natural born. The Court reserved its decision.