VISIT OF CHILDREN TO CHINA,
Interesting points as to nationality were argued before the Full Court to-day, when a Chinaman, Joe Lum, storekeeper, of Wellington, raised the question in an action between himself and the Attorney- General. On. the Bench were the Chief Justice (Sir Robert Stout), Mr. Justice Cooper, Mr. Justice Sim, and Mr. Justice Herdman. Sir John Findlay, K.C., with him Mr. A. de B. Brandon, appeared for Lum, while Sir John Salmond, Solicitor-General, represented the Crown.
The facts of the case are that Joe Lum is an unnaturhlised Chinese resident of Wellington, who married Chu Ah Nui in New Zealand on 28th November, 1905. Six children have been born in Wellington. Lum is now about to visit China, taking with him his infant children, whom he intends to leave in China for some years for the purpose of being educated in their native tongue. On application to the Customs Department, Lum was informed that unless the children return to the Dominion within four years after registering of their names in accordance with section 2 of the Immigration Restriction Act, 1908, they will not be allowed to land in New Zealand except on payment of the poll-tax of £100, and on passing the test imposed by section 31 and 42 respectively of the Immigration Restriction Act. According to Lum, it is not improbable that circumstances will keep the children in China for longer than four years. The Court was asked for an order interpreting the enactment, and, in particular, determining (1) whether, in the event of a person bom in New Zealand of Chinese parents not nationalised under the Aliens Act, 1908, and leaving New Zealand while an infant, and returning to Now 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 requirements of subsection la of section 2 of the Immigration Restriction Act, 1908, (b) if such person complies with all the requirements of the subsection 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; (2) whether, in the event of such person leaving New Zealand while an infant, and returning after attaining 21 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 subsection 1 (a) of section 2 of the Immigration Restriction Act Amendment, 1908, (b) if such person complies with the requirements of the subsection, except the requirements as to l .turn within four years, (c) if such person fails to comply with any of the requirements of-tho subsection.
Sir John Findlay said the central question was whether the children in the case were Chinese. He react the definition attached to the Immigration Restriction Act, and said that these children, having been born in New Zealand, were British subjects. If the action of the Customs Department was upheld it might equally be held that any New Zealander leaving the country might be treated as an immigrant upon his return. Sir John Salmond, K.C., said that his construction of the Act imposed no hardship on anyone. Tho Act contained the fullest power for discretionary exemption in all proper cases. If it was deemed proper to allow a young Chinaman to leave the country and return later without restriction, there was power, under the Amending Act of 1910, to allow him to do so. It must not be understood, however, that he could do this of his own right. In the present case, for instance, these young Chinamen might, by virtue of their education in China, lose all trace of European customs and education, and might return to the Dominion essentially Chinese.
The Court reserved its decision,
Evening Post, Volume XCVII, Issue 149, 26 June 1919, Page 8
WELLINGTON, Jury 8. The Court of Appeal to-day delivered judgment in the case of Joe Lum v. the Attorney-General. This was an originating summons to determine the meaning of the definition of "Chinese in the Immigration Restriction Act.
The facts were that a Chinaman married here .wished to send his children, all born in New Zealand, to China to be educated, and the question was whether, if they did not return to New Zealand within four years they cause under the definition and would be subject to the restrictions of the Act.
The Court held that the children in such' case would not come under the restrictions of the Act. Marlborough Express, Volume LIII, Issue 191, 9 July 1919, Page 5