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
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