James Minahan’s Homecoming: A story of race and belonging in White Australia

INTRODUCTION

‘A few Celestials … marry barbarian girls’ – Illustrated Australian News, 18681

People of the West always imagined themselves to be very different from the Chinese. When the two groups encountered each other in the colonies of south-eastern Australia in the mid-nineteenth century, this idea of difference underpinned the white colonials first and subsequent impressions of those arriving from the ‘Celestial Empire’. Small numbers of Chinese men and boys had arrived in Victoria and New South Wales before the 1850s, but it was with the discovery of gold that immigration from China rapidly increased. Between YEAR and YEAR, NUMBER of Chinese men arrived in Victoria, and NUMBER in New South Wales. Only a very small number of Chinese women and girls made the journey, particularly in the early years. NUMBERS.

The Chinese were only one immigrant group among many. The colonies also became home to new arrivals from Italy, Germany AND SO ON, as well as the many thousands arriving from England, Scotland and Ireland, but the Chinese were the most visible minority and the one which seemed most foreign to white Australian colonists. Not only did the Chinese look different from those of British and European stock, but their language, customs and religion were unfamiliar and unsettling. It was easy for white Australians to make unfounded and often outlandish accusations about the Chinese, from allegations of widespread homosexual practices and a supposed preference for eating dogs and cats to mockery of their broken English and queues (pigtails) and complaints about their frugal lifestyle and lack of ‘family life’ in the colonies. All of this rendered the Chinese more foreign and the Chinese became well aware of quite how white colonials perceived them.

Quite how the Chinese saw their new white neighbours and the landscape of their new home was much less obvious to the Australian eye. Some Chinese had come from the Californian goldfields and would have known something of the language and customs of the ‘foreign devils’. Others had encountered Westerners in the Chinese treaty ports or in Hong Kong, some were schooled in missionary schools and spoke English. For others, it was their first real encounter with the people they knew as ‘barbarians’ with red hair and big noses. SEE FRANK DIKOTTER BOOK. The landscape too was foreign – summers hot and dry and brown, not wet and green and humid…

By 1860 however, something else was happening in the colonies which demonstrated that for all the rhetoric of racial, cultural and biological difference, Chinese and white Australians were meeting and mixing in the most intimate of ways. Even with their apparent differences, increasing numbers of Chinese men and white Australian women were coming together, forming relationships, getting married and having babies. GO INTO SOME STATS AND INFO FROM EARLY REPORTS. By the time the colonial censuses began to enumerate those classified as ‘half-caste Chinese’ in the later part of the nineteenth century, the numbers had grown much larger. The Victorian census of 1871 (the first to record ‘half-caste Chinese’ separately) found that there were NUMBER in the colony; in 1881, SOMETHING ABOUT THE TWO FOLLOWING CENSUSES IN VIC AND NSW. By the turn of the new century, the numbers of ‘half-caste Chinese’ were reported as being NUMBER in Victoria and NUMBER in New South Wales, almost equally divided between men and women. These figures did not, of course, include those who might have chosen to hide their part-Chinese ancestry, or those who identified purely as Chinese.

These interracial relationships, and the mixed race progeny they produced, were not met with enthusiasm by many white commentators. DISCUSSION OF RHETORICAL STUFF – pollution of race etc. The response to mixed relationships shown within different parts of the Australian community was complex and contradictory though, ranging from the most vehement of hatred and violence by some, to acceptance and even encouragement by others. On a general level, there was a measure of toleration. Unlike parts of the United States which had anti-miscegenation laws, no legislation was introduced in the Australian colonies that forbid marriages between Chinese and whites, nor were there specific laws such as the NAME OF LAW in Canada which prevented white women from being employed by Chinese. The children of marriages between Chinese and whites were legitimate, and mixed race families were not subjected to particular interference by authorities. In many ways, it seems that colonial communities adopted the attitude expressed by NAME in his NAME OF WORK in DATE:

Quote the bit about general and particular.

White women, their Chinese partners and their mixed race children lived in many communities, small and large, in both rural and urban parts of Victoria and New South Wales. They worked, ran businesses, raised families, were education, attended church – they did all the things that other people did. RICH, POOR, ETC. DATA FROM MY MARRIAGE RECORDS.

But even as these families got on with living their often very ordinary lives, there were continuing concerns at a political level about the Chinese presence, the so-called ‘Chinese Question’, and interracial relationships continued to be a part of these concerns. 1861 DEBATES, 1888 DEBATES, 1901 DEBATES = WHITE AUSTRALIA. IMMIGRATION RESTRICTION ACT. These debates centred around what happened when the Chinese were allowed in, and focused on keeping the Chinese out. But by the turn of the twentieth century there were already lots here, settled, Australian-born, living Australian lives.

This book tells the story of one young Anglo-Chinese man whose life became entangled in the mechanisms of White Australia and the fears and suspicions that Australian nation had towards the Chinese foreigner. If his father had not decided to take him to China as a boy, James Minahan may well have gone on to live one of those more-or-less ordinary lives of other Anglo-Chinese born in the colonies. He may well have been among the ancestors of Australians today who can trace their family connections back to a Chinese great-great-grandfather etc. DISCUSSION OF FAMILY HISTORY RENAISSANCE. But James Minahan’s life didn’t follow that path, and the legal case that ensued provides us with a rare insight into how White Australia, that is, how the men who dealt with the law and policy of White Australia, thought about Australians of mixed race and how the system dealt with them.

The story is mostly revealed through a file of the Department of External Affairs and a file of the High Court. Alongside the bigger picture about White Australia is the detailed and intimate facts of a family’s breakdown, of a child’s loss of his mother, of a Chinese community where there was a different kind of family life, bound by clan and kinship and native place.

Chapter 1 – AN UNEXPECTED WELCOME

‘Lead-in quote’ – Quote attribution, date

The letter James Minahan was waiting for had arrived at last. Sent from the firm of Quong Hing Yeong in Hong Kong, the letter contained the news that having received a remittance of HK$200 from Australia they could now book him a passage to Melbourne, the city of his birth. At 31 years old, James had decided to return to Australia after twenty-six years in China. He had spent the last decade studying for the imperial examinations (kējǔ) but after three unsuccessful attempts to gain a degree he had decided to try his luck in business in Australia instead.[1]

In late 1907, James had written to his father’s former business partner, Chin Shing, asking him to send money for the passage. Over the many years since James and his now dead father had returned to China, Chin Shing had regularly sent them money from the business they jointly owned – a small store at Indigo in northeastern Victoria. Chin Shing would typically give the money to friends going down to Melbourne, who would then send it to Hong Kong though one of the Little Bourke Street stores, such as Hang Yick or, in this case, Sun Nam Hie & Co. The receiving firm in Hong Kong would then send the money on to China, initially to James’s father Cheong Ming, or after Cheong Ming’s death in 1896, to James himself.

On hearing from Quong Hing Yeong that this latest remittance had arrived, James wrote back asking details of the next ship bound for Australia. The SS Taiyuan was due to sail from Hong Kong for Sydney on Wednesday, 1 January 1908[2], and James began to make preparations to leave the only home he really knew – the small village of Shek Quey Lee near Kongmoon, where he had lived since the age of five.

PARAGRAPH HERE ABOUT WHERE SQL IS, JIANGMEN, INLAND FROM HK.

MINAHAN FIRST WENT FROM VILLAGE TO JIANGMEN.

James’s journey from Kongmoon to Hong Kong was on a small steamer, and on his arrival he went to Quong Hing Yeong to book a passage on the Taiyuan. He presented his Victorian birth certificate as proof of his entitlement to land in Australia and paid HK$210 for the fare. Then he wrote to Chin Shing to expect his arrival.

Chin Shing was not surprised by James’s imminent return to Australia. He had received other letters over the past couple of years telling him of James’s failure at the imperial examinations and of his intention to come back to Victoria. As requested, he had sent James £21 for his passage (the HK$200 received by Quong Hing Yeong) via Melbourne merchants Chin Kay and Ah Doe of Sun Nam Hie & Co. in Little Bourke Street. And now, on hearing that James was soon to arrive, he again contacted Chin Kay.

Chin Shing was busy in Indigo, with his business and family, and had not been to Melbourne in more than two decades, but Chin Kay was already in Melbourne and could more easily meet James on his arrival. Chin Kay knew James and his father, both in China and Australia. His home in Shek Quey Lee was just opposite from where James lived, and he had seen both father and son there on his various trips home over the previous 25 years. Receiving Chin Shing’s letter about a week before James’s arrival, Chin Kay made preparations to meet his boat when it got to Melbourne.

After leaving a wintery Hong Kong, the Taiyuan made its way south. First… Then crossing the equator…

When the Taiyuan sailed into Sydney Harbour on Thursday, 23 January 1908, there were 47 passengers on board. Thirty-nine of these were Chinese men – four bound for Sydney and six for Melbourne, with the remainder travelling on to New Zealand and Fiji. James Minahan was one of those bound for Melbourne, but his name, as such, does not appear on the passenger manifest. Instead, he is listed as James Kitchen, aged 31, storekeeper. His race is given as Chinese and, under the column for nationality, it is noted that he had a birth certificate, no. 23008.

Sydney Customs inspector JTT Donohoe was on the wharf to meet the Taiyuan and, after inspecting the passengers’ papers, he decided to give James the Dictation Test. James was unable to complete it, but as his ultimate destination was Melbourne not Sydney, he was allowed to continue on with his fellow passengers. James and the other five men were handprinted then transhipped to the SS Wollowra. They sailed again at 5.30pm on Friday, 24 January, for the final stage of their journey to Melbourne.

As they made their way south, Donohoe advised the Melbourne Collector of Customs and the Secretary of the Department of External Affairs of their coming, forwarding their handprints and documents, including birth certificate no. 23008, to assist Melbourne Customs with the men’s identification. After the Wollowra arrived at the Australian Wharf in Melbourne on Sunday, 26 January 1908, the six men were briefly seen by Customs officer Hugh Mercer. But, since it was a Sunday and Mercer had no Chinese interpreter with him, he decided to return the following day to formally examine them. Mercer returned on Monday and, with the help of government translator Harry Hoyling, interviewed James Minahan in the saloon of the Wollowra. Mercer also spoke to ‘a reputable Chinaman’, tobacco dealer Chan Num, who had known James as a boy and had come to meet him at the wharf. As planned, Chin Kay had also come to meet the boat.

To execute his duties, Mercer needed to establish whether the birth certificate James presented was really his own. He later noted that there was no indication on the certificate that it belonged to someone who was ‘Chinese’. The certificate was in the name ‘James Francis Kitchen’, no father’s name was given and the mother was one Winifred Minahan. How could it belong to a man who seemed so Chinese in appearance and manner, who understood not a word of the English being spoken to him? After interviewing James, Mercer was not convinced that he was who he claimed to be and applied the Dictation Test. Through the interpreter Harry Hoyling, Mercer told James that he was going to read a passage of not less than fifty words in English and that he was required to write them in English. He gave James a pencil and paper and read the passage once slowly. This was the passage he read:

A large part of the cheapening of steel has been brought about by this one device for using cheap inferior fuels. In the iron trade it was discovered many years ago that it paid to produce more of this particular gas than could be used in the purely metallurgical operations.

When asked, James said that he couldn’t write out the passage. Mercer informed him that he was a prohibited immigrant and that he could not land in Australia. James was to be transferred back to the Taiyuan and returned to Hong Kong.

The next day, Tuesday, James left Melbourne for Sydney on the Wollowra, and Melbourne Customs informed their Sydney colleagues of his rejection under the Immigration Restriction Act. When he arrived in Sydney two days later, James was escorted by Customs inspector Donohoe back to the Taiyuan, which was due to sail for Hong Kong at the end of the following week. On Thursday, 6 February, however, two days before the scheduled departure, the Taiyuan’s Captain Dawson was asked to show cause why a writ of habeas corpus should not be issued against him for holding James Minahan on board.

The matter was heard before Mr Justice Street in chambers on Friday, 7 February. Captain Dawson argued that he was acting on the orders of the Commonwealth Customs department, who had declared James Minahan was a prohibited immigrant. Under section 9 of the Immigration Restriction Act, as master of the vessel he would be liable for a penalty of £100 if a prohibited immigrant land from his vessel. Justice Street, however, concluded that there had been no clear demonstration that James Minahan was in fact a prohibited immigrant under the Act, and his release was ordered.

James Minahan left the Taiyuan at around one o’clock that afternoon, but he was not free for long. Acting on instructions from the Department of External Affairs, Customs inspector Donohoe had waited at Circular Quay for James Minahan and arrested him as he left the wharf. Donohoe took him to the No. 4 Police Station at George Street North, where he was charged with being a ‘prohibited immigrant found within the Commonwealth in contravention of the Immigration Restriction Act, 1901–1905’.[3] James Minahan was brought before the Water Police Court at two o’clock, and remanded in custody until the following Friday. He was held in Darlinghurst Gaol.

On 6 February, when Captain Dawson had been summonsed to appear before Justice Street, the Collector of Customs in Sydney had sent an urgent telegram to the Department of External Affairs in Melbourne for advice on what action to take. The Secretary, Atlee Hunt, responded, also by telegram:

Take no action in Kitchens case … so far as habeas proceedings are concerned presume he will be brought before Court and his discharge ordered … if that happens he should be arrested on leaving Court and charged with being prohibited immigrant & on appearance before police court remand should be applied for to allow Crown solicitor to be instructed[4]

Atlee Hunt also received a personal letter from James Minahan’s Melbourne solicitor, EA Fortescue Croft, sent from Sydney on 6 February. When James Minahan had been rejected at Melbourne and returned to Sydney, Croft had rushed north to start proceedings on his behalf. Croft told Hunt that he ‘would only be playing the game fair with you after all your past consideration to me’ if he let Hunt know the true state of things, and he asked Hunt to ‘take this private letter in the spirit in which it is sent’. He told Hunt that he had ‘taken your middle course here by issuing an order nisi calling on the captain to shew cause why a writ of habeas corpus should not issue’. Croft had been advised by the Commonwealth’s counsel in the case that this was ‘the Sydney practice’.[5]

These private discussions between James Minahan’s solicitors and those representing the Commonwealth were the beginnings of a course of action, engineered behind the scenes, which saw James Minahan’s case transferred from Sydney to Melbourne. The Department of External Affairs passed the matter to the Crown Solicitor and, on request, Customs inspector Donohoe sent his file to the Crown Solicitor’s Sydney office – they had advised that ‘good Counsel’ should be nominated to prosecute the case. Moves were also taken for Melbourne Customs officer Hugh Mercer and Chinese translator Harry Hoyling to journey to Sydney for the hearing against James Minahan on Friday, 14 February. Realising the difficulty and expense of defending his client in Sydney, a city where he had no friends or contacts, on the day of James Minahan’s arrest Croft wrote to Atlee Hunt suggesting that the case be transferred to Melbourne. Atlee Hunt advised the Crown Solicitor that ‘the Department has no particular wish to act either for or against Mr Croft’s desires and will accept your decision which will doubtless be in accord with the general balance of convenience’.[6] Croft and the Crown Solicitor soon came to an agreement which suited all parties.

James Minahan was released from Darlinghurst Gaol on bail on Tuesday, 11 February, with recognizance to appear at court that Friday to answer the charges against him. Instead, however, he left Sydney that night with his solicitor on the express train for Melbourne. He was arrested on arrival and, after being bailed, went to stay at Sun Nam Hie & Co., the Little Bourke Street firm run by his uncles, Ah Doe and Ah Yuey. The Sydney charges were dropped, as had been agreed, and the case against James Minahan proceeded in the Court of Petty Sessions in Melbourne on Friday, 28 February 1908, one month after James Minahan’s initial arrest. It was another seven months after that until an appeal to the High Court resulted in a ruling, laid down on Thursday, 8 October 1908, that gave James Minahan the right to be in Australia and to remain in the country of his birth.

Chapter 2 – AUSTRALIAN BEGINNINGS

‘Lead-in quote’ – Quote attribution, date

James Minahan had been born at Melbourne’s Lying-in Hospital on 4 October 1876, the son of Cheong Ming and Winifred Minahan. He was given the names James Francis Kitchen, and his birth was registered under his mother’s surname, Minahan. No details of his father were recorded, as was common when a child’s parents were not married.[7] His mother and father had travelled to Melbourne for their baby’s birth, but returned afterwards to their home in Indigo. It was there that Jimmie, as he was known, spent the first five years of his life.

James Minahan’s father, Cheong Ming, was from the Sze Yap area around Kong Moon and had arrived in Australia as a young man in the late 1850s or early 1860s.[8] By the early 1870s, he was running a store at Indigo. Also known as Mount Pleasant, Indigo was one of a number of small mining settlements along the Indigo Lead on the Chiltern-Rutherglen goldfield, and was located about 6 miles to the northwest of the town of Chiltern. The area had taken off with a gold rush in late 1858, and by the middle of 1859 there were more than 5300 people on the Indigo Lead, of whom about 1250 were Chinese.[9] The Chinese were said to be working over abandoned diggings, and Mount Pleasant was known for its large Chinese camp and shops. A post office directory lists a Chinese doctor, butcher, carpenter and three opium shops among the two dozen other businesses at Indigo in 1870.[10] Both alluvial and quartz mining continued in the Indigo area after the immediate rush was over, as well as agricultural and pastoral pursuits, and the fortunes of the area came and went over the next 50 years.[11] When Cheong Ming and his family left Indigo in the early 1880s, the township’s population had shrunk from 560 in 1861 to only 60 in 1881.[12]

James Minahan’s mother, Winifred (or Minnie) Minahan, was significantly younger than her Chinese partner and only seventeen years old when her son was born. She was a native of Melbourne, born on 1 February 1858 at Emerald Hill (South Melbourne), the daughter of 35-year-old labourer Richard Minahan and his wife, 26-year-old Mary Manning or Manion.[13] Richard and Mary were both Irish immigrants who had married at Emerald Hill in 1856.[14] Winifred was their eldest child; they later had two sons and a daughter, Catherine.[15] It is likely that Winifred received little or no education, as she could not sign her name.[16] There is no record of how or where Winifred met Cheong Ming, but her younger sister also had an association with the Chinese. In the early 1880s, when she was about 15 or 16, Winifred’s sister was employed by Chan Num (the same man Customs officer Hugh Mercer spoke to about James Minahan at the Melbourne wharf) to care for his children.[17] At one time, Winifred and her young son visited Beechworth, about 35 kilometres south of their home in Indigo, and stayed at Chan Num’s house.

The family’s life in Indigo seems to have passed uneventfully during James Minahan’s early childhood. He was an only child until 1881, when Winifred and Cheong Ming had a daughter who they named Winifred Leina.[18] In September that year, baby Winifred died, at the age of three months, from bronchitis and pulmonary congestion.[19] Within a year the family had separated, with Winifred remaining in Victoria as Cheong Ming and their son embarked for China. According to James Minahan, a problem with his leg prompted Cheong Ming to take them both home to China.[20] The family spent five or six weeks in Melbourne before their departure. Cheong Ming stayed at Chin Kay’s store, Hang Yick, in Little Bourke Street; Winifred and their son stayed in a hotel, but came to see him nearly every day.[21]

On leaving Indigo, Cheong Ming put his business into the care of Chin Shing, who had worked for him for six years, also giving him a half share in the store. Chin Shing, together with Chin Kay, saw father and son off at the wharf in Melbourne. In 1893, at the age of 45, Chin Shing married a 17-year-old Indigo-born Anglo-Chinese girl named Jessie Ah Coon, and together they and their family continued to run the store, under the name ‘Shing Kee’, until the 1920s.[22] Chin Shing, who had each year faithfully remitted Cheong Ming and James Minahan’s share of the store’s profits to China, died in 1925. His widow Jessie lived on in Indigo, with its ever-diminishing population, until her own death in 1949, at which time the old store was demolished. Today little obvious physical evidence of the Indigo–Mt Pleasant settlements remains.

Cheong Ming, James Minahan and Winifred were together for the last time at the wharf in Melbourne, early in the second half of 1882. James Minahan was five, almost six, years old. As an adult he recalled that he had, at best, only a faint recollection of leaving Melbourne – ‘I was young. I can’t remember anything before being in China’ – and indeed almost no memory of his mother. ‘I don’t remember my mother’, he said. When pushed under cross-examination, he offered, ‘She was not very stout. She was an English woman.’[23] Winifred did not remain in Indigo after her son and partner had gone and four years later, while living in Melbourne, she married a Japanese carver named Arai Arai.[24] She never saw her son again and James Minahan said in 1908 that he had been informed that his mother had died at Melbourne ‘some years ago’.[25]

Chapter 3 – A NEW HOME

‘Lead-in quote’ – Quote attribution, date

From Melbourne, Cheong Ming and little James Minahan went first to Hong Kong, then inland to Kong Moon. In Kong Moon they delivered a letter from an acquaintance named Ah Goon in Victoria to his nephew, Deung Garng. Cheong Ming and Deung Garng shared the ancestral village of Shek Quey Lee, and father and son stayed with him for a week in Kong Moon before all three travelled on together to the village, which was about 20 li or Chinese miles (about 13 kilometres) away. In Shek Quey Lee, Cheong Ming became a schoolmaster and James Minahan began his education in Chinese. They lived together, alone, in a house with two rooms and a kitchen. From all accounts, Cheong Ming did not have a wife in China, nor was there any mention of close relatives such as parents or brothers.

Father and son were, however, surrounded by an extended network of village men and their families who had Victorian connections. They continued to see Deung Garng, whose house was in the next street to theirs; initially when he visited the village from Kong Moon about four times a year and then, after he went to Australia to work as a French polisher in about 1895, during a three-year stay from around 1901 to 1904. Chin Kay, of Hang Yick in Little Bourke Street, was not a relative, but had a house opposite theirs and saw them daily during three extended visits (of between one and three years each) that he made to Shek Quey Lee during the 1880s and 1890s. Dern Hoy, a French polisher who arrived in Melbourne in 1882 just as Cheong Ming was preparing to leave, made a trip home to Shek Quey Lee in 1906 and had conversations with James Minahan about life in Victoria. James Minahan asked him how business was in Australia, whether it was good or bad, and about the Indigo store. He did not ask anything about his mother.

It took James Minahan some time to settle in to life in the village, and to be accepted by fellow villagers. He started to attend school several months after his arrival, later recalling that his schoolmates called him ‘foreign devil’. His response was to swear at them. The name was not one only used in schoolboy taunts, however, and James Minahan’s mixed heritage was well-known. Dern Hoy said that when he saw the adult James Minahan in Shek Quey Lee in 1906, twenty-five years after he had seen him as a boy in Melbourne, he recognised him by his ‘half-caste features’. He said that when he was young, James Minahan had ‘a pointed face’ and that ‘when I went home everybody called him the foreign devil boy’.[26] James Minahan said that as a boy he cried very much when his father shaved his hair off (as was customary)[27] and when the villagers called him the ‘little foreign devil boy’.

In around 1896, at the age of 54, Cheong Ming died.[28] James Minahan was nineteen. One villager, Ah Chew, who was later a cabinetmaker living in Lygon Street, Melbourne, was still in Shek Quey Lee at the time of Cheong Ming’s death and recalled that ‘a lot of people attended the funeral’.[29] James Minahan said that his father had thought that their stay in China was also not going to be a long one: ‘He said he would stay a little time in China, and then go back to Australia’, but his ill-health prevented this.[30] Chin Kay described him as being a ‘lame man’.

Before his death, Cheong Ming had talked to his son about Australia and their business interests there, and had shown him his birth certificate. The certificate was kept safely locked in a box in their home. Cheong Ming encouraged his son to study hard and gain a degree, saying that he could return to Australia and make good money teaching young boys there. With the remittances Chin Shing sent from Victoria enough to support him even after his father’s death, this is what James Minahan set out to do. He attended school for 16 years, until he was 22 years old, studying the likes of the Four Books, the Five Classics and other Confucian works.

At the age of 23 he attended the gruelling Imperial examinations in Canton. The examinations were held over three days, during which time the students remained in separate small cubicles about three metres square, and had no contact with the outside world except for servants who brought the question papers and delivered food.[31] Failing his first attempt, James Minahan returned to the village, studying privately at home in preparation for his next try. He sat the exams unsuccessfully another two times. The exams were only held every three years, and James Minahan had devoted the best part of a decade pursuing the path his father had set out for him. After his third failure, he gave up and decided to return to Australia anyway.

Chapter 4 – THE RIGHT TO RETURN?

‘Lead-in quote’ – Quote attribution, date

Armed with his birth certificate and the knowledge that he had both friends and money in Australia, James Minahan cannot have imagined that his return would proceed as it did. He said he had ‘always wanted to return to Australia’ and it seems that his father had always told him that this was possible; indeed, it was his right as a British subject born in the colony of Victoria. Unfortunately, during the years of James Minahan’s absence from Australia, the politics of the white nation had come into being and there were new policies and administrative hurdles to leap. Being born in Victoria was not enough to guarantee a right of return.

After James Minahan arrived by train in Melbourne with his solicitor on 13 February, he was arrested by Constable Lionel Potter of the Victorian Police. The charge was:

being an immigrant who within one year after he had entered the Commonwealth failed to pass the dictation test within the meaning of the Immigration Restriction Acts 1901–1905 and being a prohibited immigrant was found within the Commonwealth in contravention of the said Immigration Restriction Acts 1901–1905 of the Commonwealth of Australia.[32]

James Minahan was taken to the watch house and the following day his matter was heard at the City Court before the police magistrate, Mr PJ Dwyer. James Minahan’s solicitor EA Fortescue Croft, of Croft and Roden Solicitors, asked for an adjournment so that he had time to call witnesses. He was allowed two weeks and a new hearing date was set for Friday, 28 February. James Minahan was allowed out on bail of £100 and after his release he went to stay at the store owned by his two uncles, Sun Nam Hie & Co. in Little Bourke Street.

When the parties reassembled the following fortnight, John Gardener Davies, a clerk with the Crown Solicitor’s office, attended to record details of the hearings. His notes, which later became part of the documents presented to the High Court, provide the remaining record of the evidence given at the power court hearings, including the evidence given by James Minahan and other witnesses. The matter was heard before Charles Arthur Costley Cresswell, Police Magistrate, with HW Bryant appearing for the prosecution and Mr Coldham for the defendant.

The case against James Minahan was, simply, that within the meaning of the Immigration Restriction Act he was a prohibited immigrant. His lawyers argued that James Minahan was a ‘native of Victoria’ and that his domicile, which had not permanently changed during his time in China, remained as Victoria. Someone who was domiciled in Victoria could not, therefore, be a ‘prohibited immigrant’ because he was not an ‘immigrant’ at all. For the prosecution, evidence was heard from Customs officer Hugh Mercer and Chinese translator Harry Hoyling, as well as Detective Potter, who had arrested James Minahan in Melbourne. James Minahan’s solicitors managed to bring together a collection of men who knew James Minahan and his father, both in Australia and China, including Chin Shing, Chin Kay, Deung Garng, Ah Chew, Dern Hoy, Chan Num and James Minahan’s uncle Ah Doe. They gave evidence as to his identity and of his Australian birth. James Minahan himself also chose to give evidence.

James Minahan’s evidence was not complete when the court had to adjourn for the day on 28 February. A further hearing date was set for 20 March, the three week delay because James Minahan’s counsel, Mr Coldham, had another case pending in the High Court, and his solicitor, Mr Croft, was to be out of town. On 20 March, neither counsel, the Commonwealth’s Mr Bryant nor Mr Coldham, could appear, so Croft asked for an adjournment of another week. Detective Potter consented on behalf of the Commonwealth. On Friday, 27 March, Croft and an officer from the Crown Solicitor’s office again attended the City Court, but while waiting for the case to be called they received word that Mr Bryant and Mr Coldham were both held up with part-heard cases in the Supreme Court. The magistrate agreed to adjourn the matter, as it couldn’t proceed without counsel, until the following week.

James Minahan was finally able to finish giving his evidence on Tuesday, 31 March 1908. He spoke through an interpreter and Davies’ notes only record the answers that he (and the other witnesses) gave, not the questions asked. James Minahan first faced questions from his own counsel and then a cross-examination from Mr Bryant.

Bryant asked him about his birth certificate, and presented it to him. James Minahan had previously told the magistrate that although he had kept it safely for many years, he was unable to actually read what the certificate said. James Minahan did, however, read to the court the words in Chinese that were written on the back. Chinese interpreter Harry Hoyling had already translated the text when he appeared for the prosecution, and their versions are slightly different. Hoyling’s version was: ‘English name, James Francis Kitchen. Also Chinese date. This is a duplicate copy, the original has been lost.’ James Minahan read it as:

James Francis Kitchen,
Ying Coon,
Original is lost,
(Chinese date),
31.

James Minahan told the court that his father had kept the certificate at home and had shown it to him when he was about fifteen or sixteen, at which time Cheong Ming had written the words on the back. The prosecution however had doubt as to whether the certificate had not been purchased just for the purpose of effecting the fraudulent entry of James Minahan into Australia.

Nothing more was made of the Chinese writing on the back of the certificate during the proceedings, but the presence of the ‘31’, the age James Minahan was when he returned to Australia, would perhaps suggest that this writing was not, in fact, in his father’s hand at all. Other documents, such as birth certificates and CEDTs used by Chinese returning to Australia also have Chinese written on the back, which was apparently done at the time of a journey back to Australia. Recording information such as names (Chinese names or transliterations of English names into Chinese characters), dates and class of travel, it is most likely that this was done as part of the process of purchasing tickets or embarking at Hong Kong. Conversely, there are certainly other examples of Chinese father’s providing their Australian-born children with the information they would need to satisfactorily answer Customs officers’ questions on arrival in Australia. The text on the front of James Minahan’s birth certificate was transcribed and provided with the documents submitted for the later High Court appeal, but no copy was made of the Chinese text on the reverse. The exact meaning and the circumstances in which it was written remains unclear.

The rest of James Minahan’s evidence went to the fact that he, and his father before him, had planned to return to Australia at some point. He firmly believed that, although he could remember little of it, his original home had been in Victoria. James Minahan’s evidence described his life in Shek Quey Lee, his education and his attempts at the Imperial examinations in Canton, his father’s death, and his ongoing interaction and correspondence with men he knew in Victoria.

With the end of his testimony, the case for the defence was finished. The magistrate decided to reserve his judgement until the following Thursday at noon and, when asked, said that it wouldn’t be necessary for counsel to attend. He suggested instead that the decision should be taken down in shorthand by the Commonwealth, and a copy given to the defendant’s solicitor. John Starling, a licensed shorthand writer and young officer with the Department of External Affairs (who was later, among other things, Secretary of that Department, as well as the Prime Minister’s Department[33]), duly attended the court on 2 April. His notes record the magistrate’s decision – Creswell was of the opinion that it had been proved that James Minahan’s domicile had not changed from Victoria, that he was not an immigrant and therefore not subject to the Immigration Restriction Acts. The case was dismissed, with costs of £10 10s. to go to the defendant.

The issue of whether James Minahan was legitimate or illegitimate played a central part in Creswell’s decision, and by consequence, in that made by the High Court. From the moment James Minahan had presented his birth certificate to Customs inspector Donohoe on arrival in Sydney, the question remained as to whether the birth certificate was really his. Was his mother really Irish-Australian Winifred Minahan, and if she was, was his father really Cheong Ming, the man who had raised and educated him in China? Was this ‘Chinese’ man, who called himself James Minahan, actually the same person as the ‘half-caste’ boy, Jimmie, who had left Victoria more than two decades earlier?

The testimony presented in court convinced the magistrate that it was so. In his decision Creswell reasoned that Cheong Ming and Winifred Minahan had lived together as man and wife – with the presumption that they were married – and that James Minahan had lived with them and been raised by them as their own child – the presumption also being that he was legitimate. Creswell stated that these presumptions were not rebutted during the hearings. On the matter of the birth certificate, on which no father’s name or date of marriage is listed, he concluded that ‘the certificate is evidence of what it contains rather than what it omits’. It did not disprove that Cheong Ming was the boy’s father or that the parents were married. Furthermore he concluded that ‘a statement made by the parent is evidence of pedigree’ and that Cheong Ming’s behaviour towards the boy had demonstrated his paternity.

On the question of James Minahan’s domicile, Creswell concluded that there was evidence to show that first Cheong Ming and then his son intended to return to Australia at some future time: ‘In leaving Victoria for China the father in the first instance and afterwards his son, the defendant, did not intend to permanently change the domicile of defendant from Victoria to China’. On that reasoning, James Minahan was not an immigrant at all.

As the case progressed, the Crown Solicitor, Charles Powers, kept Robert Garran, Secretary of the Attorney-General’s Department and Atlee Hunt, Secretary of the Department of External Affairs abreast of developments. He forwarded them both a copy of the police magistrate’s judgement on 3 April 1908, noting in his cover letter to Garran that:

Six Chinese, who were called as witnesses for the Defence, gave evidence as to the identity of the defendant with the person referred to in the Birth Certificate which he produced, and that evidence was not shaken in cross-examination, nor could any positive evidence in rebuttal be obtained.[34]

He asked for instructions on whether it was intended to appeal ‘on the question of law as to whether in the circumstances he is an immigrant within the meaning of the Immigration Restriction Act’. On 6 April, Atlee Hunt went to Garran for advice on whether the appeal should be made. Two days later Garran recommended that it should, and after approval from the Attorney-General, Littleton Groom, this advice was sent on to the Department of External Affairs. Atlee Hunt told the Crown Solicitor on 10 April that ‘the Prime Minister directs that the decision be appealed from’ and asked him to ‘arrange accordingly’.[35]

Chapter 5 – POTTER v. MINAHAN

‘I always wanted to return to Australia’ – James Minahan, 1908

With the decision to take the matter to the High Court, the Crown Solicitor got to work. Affidavits were made by Detective Potter, requesting a review of the magistrate’s decision to dismiss the charges he brought against James Minahan, and by John Davies, giving a statement of evidence from the notes he took of the Court of Petty Sessions proceedings. The affidavits were filed with the High Court registry on 28 April, and the following day in chambers Mr Justice Isaacs heard the Commonwealth’s application for review. After considering the evidence and the findings of the police magistrate, Justice Isaacs decided to allow the appeal, and listed the case for the Court’s May sittings. The Crown Solicitor prepared an Order Nisi to Review, which laid out the grounds for the appeal, and this was filed with the High Court on Saturday, 2 May. He also organised for a copy set of documents, including James Minahan’s birth certificate and the notes of the lower court hearings, to be prepared and filed in accordance with the Rules of the Court.

The Commonwealth’s appeal was on the grounds that James Minahan was prima facie an immigrant, and furthermore a prohibited immigrant, within the meaning of the Immigration Restriction Act; that the findings of fact by the police magistrate were against the weight of evidence; and that there was no evidence that Cheong Ming (whose name was written as Teung Ming in the court papers) or James Minahan (known in all the court proceedings as James Francis Kitchen Minahan) were domiciled in Australia. A number of cases during the previous few years had begun to clarify the definitions laid out in the Immigration Restriction Act – including the seemingly most basic and fundamental one of who was an immigrant and what exactly the term immigration meant. The government was reliant on the courts to provide such clarification of who was and was not a member of the Australian community, as the Constitution did not include the concept of an Australian citizen. In 1905, the High Court had held that an immigrant was simply someone who entered the Commonwealth, whether they were planning to stay a short or long time.[36] However, in the Ah Sheung case a year later, the Court upheld a decision from the Supreme Court of Victoria that Ah Sheung, a naturalised British subject who had left Australia for a temporary visit overseas, did not fall under the terms of the Act when he entered the Commonwealth.[37] In that case Chief Justice of the High Court Samuel Griffith noted that:

We think there is much force in the view…, although not argued before us, that the term ‘immigration’ does not extend to the case of Australians – to use for the moment a neutral word – who are merely absent from Australia on a visit animo revertendi [with the intention of returning].[38]

Concurrent with the Ah Sheung case, the Prime Minister asked the Attorney-General for advice on the question of whether being born in Australia prevented someone, on returning to Australia after a lengthy absence, from being considered an ‘immigrant’ within the meaning of the Immigration Restriction Act. He cited the fact that there were at that time a number of cases before the Department of Australian-born Chinese returning from overseas claiming that ‘by reason of their having been born here, they are entitled to exemption’. The Attorney-General, Littleton Groom, offered the opinion that an Australian birth was not conclusive one way or the other, and the facts in each individual case would need to be reviewed.[39] With the question still so unclear from a legal perspective, Charles Power, the Crown Solicitor, wrote to Atlee Hunt on 30 April that for Justice Isaacs the ‘principal reason for granting the Order appeared to be that the question had been before the Court in Ah Sheung’s case and left undecided’.[40]

James Minahan’s case was not heard until Wednesday, 16 September. It had been listed and then not reached several times, in May and then on 14 and 15 September. The case was heard before the Full Bench of the High Court – Chief Justice Samuel Griffith, and Justices Barton, O’Connor, Isaacs and Higgins. HW Bryant appeared for the Commonwealth, and Frank Gavan Duffy KC and William Ah Ket represented James Minahan. The hearing continued for three days, and following a break over the weekend, concluded on Monday, 21 September. The judgement was reserved until 8 October, when, between the hours of 10.30am and 12 noon, each of the judges gave a separate ruling. Although not unanimous in their reasoning, the judges all agreed that the appeal should be dismissed. The order of the police magistrate was upheld and James Minahan was declared not to be a prohibited immigrant.

The judges saw that there were two parts to the charge against James Minahan, and so two matters that required a decision. The first, whether James Minahan could be called an immigrant under the Immigration Restriction Act, consumed most of the judges’ attention and, in their opinion, was the more interesting part of the case before them. It was also a matter in which they were keen to set their opinions down on record. The second, which in the words of Griffith CJ was of ‘comparatively little importance’, was whether James Minahan had actually failed the Dictation Test as set out in the Act. Certainly, he had not written the passage as was required of him under the Act, but had Customs officer Hugh Mercer actually applied the test properly?[41]

On the question of whether James Minahan was an immigrant, Griffith first considered the meaning of the term. Counsel for the Commonwealth had put it that within sec. 51 of the Constitution, immigration referred to every person entering Australia, an argument rejected by Griffith, who stated that it meant more than ‘mere physical entry into the Commonwealth’. Certainly, there was no doubt that James Minahan had entered the Commonwealth, and that he had come from China, but the facts of the case had to be considered before determining if he was in fact an immigrant. Griffith noted that the facts had been clearly stated in the evidence heard before the police magistrate and he did not doubt its truth. From that evidence, however, the magistrate had presumed that James Minahan’s parents were married and that he was legitimate. Griffith made no such presumption:

Having regard to the conditions in Victoria in 1876, and to the relations between Chinese and European women at that time, I think that there is not even a primâ facie probability of a legal marriage. And, when to these facts it is added that the child was registered without mention of a father, I think that, so far from there being a high degree of probability in favour of a legal marriage, there is the highest degree of probability in favour of a contrary conclusion.

Following this conclusion, Griffith reasoned that at birth James Minahan had acquired both British nationality and his mother’s domicile of Victoria, and that in the intervening years he had never voluntarily chosen a different domicile. Griffith felt, however, that the matter could not be determined by ‘the mere application of the rules of either nationality or of domicil [sic]’. There was something more at play, for the concepts of nationality and domicile were both founded on:

…an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority.

James Minahan was entitled ‘by the circumstances of his birth’ to regard Victoria as his home. He was not an immigrant, but had retained his membership of the Australian community.

Like Griffith, Barton too accepted the evidence presented to the police magistrate. Creswell, he stated, had the opportunity to observe the demeanour of those who gave evidence, and had ‘an experience in weighing the evidence of Chinese which is denied to those who merely read their written or printed depositions’. The magistrate had ‘not been able to detect… a tissue of fabrications woven by conspiracy; he believes its truth, and says so’. Barton also questioned the magistrate’s presumption of James Minahan’s legitimacy and doubted that his parents had married, for there was ‘nothing to show that their relations differed from those which have been so common between Chinese and European women’. He arrived at the same conclusion as Griffith, that James Minahan’s domicile of origin was that of his mother, Victoria, and as he had not voluntarily chosen any other, so it remained. The question of ‘home’ was, for Barton, also relevant to the consideration at hand. He concluded that James Minahan:

…had not made China his home. Victoria was his old home. His return to it was the fulfilment of an oft-expressed desire and intention. Was his return a home-coming? I cannot refuse to say that it was. When he was taken away in 1882 he was a member of this community, and here lay his home. He did not make himself a fresh one in another community. He is entitled to this one.

James Minahan could not then be considered an immigrant.

O’Connor saw that there were two parts to the question of whether James Minahan was an immigrant: what was the definition of ‘immigrant’ in sec. 3 of the Act, and, had the evidence before the court established that he was an immigrant within that definition? After consulting four dictionaries as to the common meaning of ‘immigration’, and considering case law on questions of domicile and nationality, O’Connor concluded that ‘a person cannot be an immigrant into the country which is his home’. But was Australia James Minahan’s home? The critical point for O’Connor in coming to the conclusion that it indeed was, was once again James Minahan’s illegitimacy. As the illegitimate Victorian-born son of a British subject, he was not an immigrant.

For Isaacs, immigration connoted two facts – that there was entry into the Commonwealth and that the person entering was not, at that moment, one of the people of the Commonwealth. If a person could not demonstrate that they were ‘a portion of the people of the Commonwealth, as an ordinary reasonable person would understand the matter’, he was an immigrant. If he then failed the Dictation Test, he was a prohibited immigrant. Isaacs saw that while in China, James Minahan had not prepared himself ‘in the smallest degree for life in the country, he now would have us believe, he unceasingly treasured in his heart for 26 years as his real and unabandoned home’. While in China:

He was in language, education, ideas, and probably religious faith, entirely at one with the people around him; every day found him closer to them, and farther from the people of Australia.

This being considered, Isaacs concluded that James Minahan was not one of the people of the Commonwealth. He had not retained Australia as his permanent home, becoming instead identified with the people of China and the locality where he had lived for so long. He was therefore an immigrant.

In the final decision, Higgins set himself the following question to answer ‘Was the respondent’s [James Minahan’s] residence or habitat in China before he left China to come to Australia?’ If so, he was an immigrant. Higgins distinguished the idea of residence from the legal constructs of domicile and nationality, stressing that the words of the Act should be interpreted by their ordinary meaning. It was clear to Higgins that James Minahan’s residence or his home, in the ordinary sense of the word, over the previous decade and a half had been in China. Being born in Australia did not change that, nor did it mean that the Act could not apply to him. With a somewhat creative flourish, Higgins gave a series of hypothetical situations to demonstrate why he believed that those who had drawn up the Act had meant that it could be applied to those born in Australia if their immigration were deemed ‘undesirable’:

If this respondent [James Minahan] is not an immigrant, then if A is a Malay half-caste, born near a pearl fishing station in Western Australia, goes at six months old to Saigon, lives there to the age of 50, develops leprosy, he cannot be kept out. If the responded is not an immigrant, then if B is born of Japanese parents in Sydney Harbour during a stay of a vessel there, goes forthwith to Singapore, becomes at maturity a prostitute, she cannot be kept out.

One can almost imagine Higgins trying to come up with the most extreme examples to support his argument. For him, James Minahan was clearly an immigrant.

Three of the five justices, therefore, agreed that James Minahan was not an immigrant under the Immigration Restriction Act. For Griffith and Barton, their decisions thus meant that they did not find it necessary to express a definite opinion on the further question before them, of whether the Dictation Test had been applied properly. For Isaacs and Higgins, however, who found that James Minahan was an immigrant, it was on the second point that they found grounds to dismiss the appeal.

At the opening of the appeal, James Minahan’s counsel had raised the question of whether the Dictation Test had actually been given as required under the Act, a question that had not been taken before the police magistrate. Customs officer Hugh Mercer had read the passage once to James Minahan, and then asked through an interpreter if he would be able to write it. James Minahan said no, so Mercer did not proceed with reading it a second time so that he could write it down. As O’Connor stated, for there to be an offence under the Act, two things were necessary:

The officer must dictate the words and the immigrant must fail to write them out when the officer dictates them.

Certain that James Minahan could not have written the passage should it be read to him again, Mercer’s approach may have been, in Higgins’ words, ‘highly reasonable in itself’, but it did not meet what was needed under the Act. O’Connor, Isaacs and Higgins were in agreement that the appeal should be dismissed on the grounds that the Dictation Test was not applied; for Isaacs and Higgins, this was the only grounds for dismissal. The Dictation Test had not been given properly, therefore James Minahan could not be a prohibited immigrant within the meaning of the Act.

O’Connor noted that Mercer had taken ‘an erroneous view’ by considering himself ‘at liberty to dispense with what would have been a merely formal reading for the purpose of dictation’ and Barton spoke sternly on his procedural mishandling, saying:

Officers should see to it that when they do decide to apply the test they do it strictly and to the letter, however certain it may appear that the immigrant will fail to pass it.

A circular issued to Customs officers in April 1909 admonished them to carefully note the judges’ findings and ‘act strictly in accordance with the requirements of the Act’.[42]

Chapter 6 – CASE CLOSED

‘I always wanted to return to Australia’ – James Minahan, 1908

The ‘interesting case’ of James Minahan’s rejection under the Act, the writ of habeas corpus and the ‘remarkable sequel’ of his arrest in Sydney had made the Sydney and Melbourne newspapers in February 1908.[43] The Daily Telegraph’s headline read ‘Citizen or Alien? Half-cast Chinaman’s Troubles’, while the Sydney Morning Herald declared it was a ‘Shipmaster’s Dilemma’. The High Court appeal and their decision were likewise reported, but not extensively.[44] The Sydney-based Chinese newspaper the Tung Wah Times ran two short articles about the case on 10 and then 17 October 1908[45] and the case was also briefly reported in various New Zealand newspapers.[46]

The High Court awarded costs, and in December 1908 arrangements were made between the Crown Solicitor, the Attorney-General’s Department and the Department of External Affairs for these to be paid to James Minahan’s solicitor, Mr Croft. The cost of legal fees for the appeal to the High Court was £125 6s, and James Minahan was also entitled to £10 10s awarded by the Police Magistrate in the lower court hearing, coming to a total of £135 16s.

It is unclear what exactly James Minahan was doing during the months it took for his case to be heard before the High Court, but he certainly remained in Melbourne, presumably living at Sun Nam Hie & Co. in Little Bourke Street. After his testimony before the Court of Petty Sessions at the end of March 1908, his doings are only mentioned two further times in either the High Court or Department of External Affairs files on the case. In late November 1908, James Minahan’s solicitor prepared a bill of costs for his work on the case between May and November. Among the various entries for court appearances and the preparation of briefs for counsel, Croft noted that in May 1908 he had on one day attended James Minahan, who had called with an interpreter, Ernest Tipp, to read over and have explained to him the documents in the case, and to give instructions in how he wanted to proceed in his defence.[47] A further entry notes that on a later day in May Croft attended James Minahan and his interpreter, going carefully into the evidence with them to clear up some discrepancies that were apparent in James Minahan’s earlier statements.

So, with the payment of the costs and some administrative tidying up, the official record of James Minahan and the case Potter v. Minahan ends. It would also seem to be where any real trace of James Minahan (or James Minahan) disappears. After the case concluded James Minahan was free to remain in Australia, but it is not known if he did stay or whether he returned to China once again. Descendants of Chin Shing and his Anglo-Chinese wife Jessie, who continued to live at Indigo and run the store there into the early decades of the 20th century, have no knowledge of James Minahan, and my efforts to certainly identify the location of Shek Quey Lee village, 20 li from Kong Moon, have proved fruitless. Whatever his own future held, James Minahan’s case had a significant impact on the question of who was entitled to be considered a member of the Australian community and, for the past 100 years, it has continued to be cited in High Court decisions and in discussions of Australia’s immigration law, citizenship, human rights and the Constitution.[48]