The Secretary, Department of External Affairs forwards the following case for opinion:

With reference to the accompanying papers respecting the question of the deportation from the Commonwealth of Chinese members of crews who may be prosecuted for opium smuggling, and particularly as regards your opinion of 9 January last⁽¹⁾, please furnish me with advice as to whether such men do not become immigrants after their release from gaol-

1. if they express an intention of remaining in Australia,
2. if they engage in any occupation such as gardening or cabinet-making,
3. if they do not take steps at a reasonably early period after their release to depart from the Commonwealth.

(2) If they are immigrants for any of these reasons, may not the dictation test be applied to them under section 5 of the Immigration Restriction Act?

Although, as previously advised, I think that a member of the crew of a vessel does not become an immigrant merely by being compelled by prosecution and imprisonment to enter and remain in the Commonwealth, I am of opinion that after their release, in any of the three cases mentioned, they would become immigrants, and if the dictation test is applied to them, under regulation 5, within two years of their entry, and they fail to pass, could be convicted and deported.

I would also point out that, under section 5 as amended in 1910, the averment of the prosecution that the defendant is an immigrant is deemed to be proved in the absence of proof to the contrary.

If therefore the defendant has been tested immediately after his release from gaol, and has failed to pass, and he is then charged under section 5 (2) he is prima facie an immigrant, though it is possible that the evidence may rebut that presumption, and satisfy the court that he is not an immigrant.

In the case of A.B.C., referred to in the file, the defendant has been convicted under section 5 (2) and I am of opinion that a deportation order can issue.

[Vol. 8, p. 405]

(1) Opinion No.395.