The Secretary, Home and Territories Department, has submitted the following memorandum to me for advice:

Assuming that A.B., the Chinese referred to in the attached file, is the rightful owner of the New South Wales birth certificate held by him, I should be glad to receive an early opinion as to whether it could be held that, in spite of his Australian birth, he is an 'immigrant' within the meaning of the Immigration Act 1901-1920.

2. It will be observed that, according to the birth certificate, A.B. was born in New South Wales, on 27.8.1878; that C.D.E., who claims to be his uncle, declares that A.B. was taken to China by his parents when he was about three years of age, i.e. over 40 years ago; that A.B. states that he always intended and wished to return to Australia, but was unable to do so on account of his parents desiring him to keep in touch with them and help to support them in their old age; that he is married and has a wife and four children in China; and that, according to his statement, he has no business interests in China.
3. No previous application has been made by or on behalf of A.B. for permission to return to Australia, although the fact that the copy of birth certificate herein is dated 6 June 1914 supports this man's statement that he asked his uncle, C.D.E., about eight years ago to secure a certificate of his birth and to apply for permission for him to return to Australia.
4. In connection with this case, attention is invited to the case of Potter v. Minahan 1 C.L.R. 277.

A.B. was illegitimate by birth and the papers contain no indication as to the nationality of his mother. Assuming that the mother, who was apparently a half-caste, was of British nationality, the facts in this case appear to be similar to those in the case of Potter v. Minahan in which the High Court held on the evidence that the illegitimate son of a Victorian woman who had his original home in Victoria, but at the age of five years was taken by his father a Chinese to China where he remained for 26 years, had never abandoned that home, and, therefore, on his return to Australia was not an immigrant within the meaning of the Act.

Such evidence as the file contains goes to show that the case is not so strong in favour of A.B. as it was in favour of Minahan.

The former was taken to China at the age of three years. He remained there for 41 years. He married and established a home in China where he has a wife and four children.

The foregoing strongly supports the assumption that A.B. had abandoned his Australian domicile and adopted a domicile in China. The only direct evidence supporting the contention of A.B. is the fact that he obtained in 1914 his birth certificate. It may be as he says that he required it in connection with his return to Australia. If so, his decision to return may have been formed only at that time or may have been his constant intention during his whole stay in China.

An important point of distinction between this case and Minahan's is that the mother of the latter (a woman of British blood and nationality) did not go to China with her son. She retained her Australian domicile, while in A.B.'s case the mother probably lost her Australian domicile seeing that she went to China with her son and his putative father over 40 years ago and has remained there ever since.

In my opinion it may be assumed that the mother of A.B. acquired a Chinese domicile which would become the domicile of the son during his minority. I am further of opinion that the facts of the case do not establish that A.B. upon attaining his majority evinced any intention to revert to his domicile of origin.

For these reasons and on account of other points of divergence between this case and Minahan's, I incline to the opinion that A.B. has not a 'permanent home' in Australia and may be dealt with as a prohibited immigrant under section 3 of the Immigration Act 1901-1920.

[Vol. 19, p. 140]