Ah Foo vs White Australia. P.S. He Wins

In March 1904, Ah Foo launched an appeal in the Supreme Court of Victoria against his conviction as a prohibited immigrant under the Immigration Restriction Act 1901.

You see, without knowing it, the officer who gave him the dictation test had made a simple mistake. The officer hadn’t read out the fifty words of the dictation test passage that he was required by law to do so.

He had only read out about ten words.

This officer was Mr. Brown, who, as part of his job as Tide-Waiter would board all vessels arriving in Australia and search for potential prohibited immigrants. If he found any, he would administer Section 3(a) of the Immigration Restriction Act, better known as the dictation test.

Facing the Supreme Court, Brown recounted what had happened that day on the deck of the vessel.

I gave to Ah Foo a lead-pencil, and put a piece of paper on the table, and told him to write what I was going to dictate.

I dictated about ten words of English to him. He stared at me, and did not write.

An interpreter, Sam Soong, was with me. I directed Sam Soong to interpret what I said, and he did. I then rejected Ah Foo.

David Sam-Soong, a Chinese missionary, told the court that Ah Foo said he couldn’t speak or write English, and when Brown read out the the dictation test passage, Ah Foo didn’t write anything.

The Verdict in the case of Ah Foo

After hearing the case, Judge C.J. Madden, quashed the conviction. Ah Foo was a prohibited immigrant no more. Madden felt that the Immigration Restriction Act had “never been read by the officer, or its meaning gathered by him.”

As the conviction was a civil issue, not a criminal one, the officer was bound by the Act, and was in no position to do “something which the Legislature never warranted anybody to do.”

In the present case, there is no evidence that any passage was ever dictated to this man. It is said by the officer that about ten words  were read in English. Those words might be no passage at all. They might be isolated words out of a dictionary, with no sense of a passage according to the section.

We think, according to the evidence here, that the essential constituents of the offence have certainly not been proved.

The win for Ah Foo highlighted a fundamental flaw in the wording of the Immigration Restriction Act.

…but laws could be changed.

The law makers were the ones who lost, but it wouldn’t be happening again. At least not for this reason.

 

Primary Sources

29 VLR 533 Christie vs Ah Foo (1904)
NAA: A1559, 1901/17 – Immigration Restriction Act 1901 s.3(a)