Opinion Number. 272

Subject

IMMIGRATION WHETHER AUSTRALIAN-BORN CHINESE RETURNING TO AUSTRALIA FROM CHINA ARE IMMIGRANTS

Key Legislation

CONSTITUTION, s. 51 (xxvii) : IMMIGRATION RESTRICTION ACTS 1901-1905

Date
Client
The Prime Minister

The Prime Minister asks to be advised on the following question:

Does the fact that a person has been born in Australia prevent him on returning after a lengthy absence from being considered an 'immigrant' within the meaning of the Immigration Restriction Acts 1901-1905?

A number of cases are before the Department of Chinese whose parents at one time resided in Australia, where they had children, but who subsequently left, taking their family with them. These children, having been brought up in China, now desire to return to Australia, and claim that, by reason of their having been born here, they are entitled to exemption from the provisions of the Acts mentioned.

In my opinion, the fact that a person was born in Australia is not of itself conclusive that he is not an 'immigrant' or that his subsequent entry into the Commonwealth is not 'immigration' within the meaning of section 51 (xxvii) of the Constitution and the Immigration Restriction Acts 1901 -1905.

I think that it would be a question for decision on the facts of each case whether the person was an Australian resident returning after a temporary absence, or was an immigrant within the meaning of the Acts.

[Vol. 5, p. 485]