GERMAN-BORN PRIESTS

Evening Star, Issue 17369, 3 June 1920, Page 3

GERMAN-BORN PRIESTS

DEPORTATION ORDER SUSPENDED. A Sydney cable in Tuesday's issuo read : " The military authorities lia-vo been instructed from Melbourne to remove the names of Fathers Jerger and Hirschfield from the deportation list, pending a reconsideration of the matter." An application for an injunction to restrain the Defence Department from deporting him from Australia was made bv Charles Jerger, a Roman Catholic priest, before the Full High Court at Melbourne on May 21, and was disallowed. The order had previously been sought from Mr Justice Starke, who referred the matter before the Full Bench, which consisted of the Chief Justice, Mr Justice Duffy, Mr Justice Rich, and Mr Justice Starke. Sir Edward Mitchell, K.C., and Mr Power (instructed by Mr T. P. Nolan) appeared for Jerger, and Mr Latham (instructed by the Commonwealth Crown Solicitor) for the Minister of Defence (Senator Pearce). In an affidavit filed on behalf of the applicant, ho said that he was born at St. Blasien, Baden, South Germany, in 1869. Ho was tho son of Philip Morlock and Wilhelmina Jerger, and the latter died at Chatswood, Sydney, on September 4, 1919. His father died in the year of applicant's birth, and about 1870 or 1871 his mother married John Jerger. Jerger was born in 1842 at Niedereschaeh, Germany, and subsequently went to England, where he was naturalised as a British subject about 1862 or 1863. A vear or two after the marriage the applicant was taken to England bv his stepfather and mother, and about 1837 or 1888 they came to Australia. His stepfather's certificate of naturalisation was destroyed by fire in 1899, and rather than go to the trouble of sending to Plymouth for a copv of his naturalisation certificate, his stepfather applied for fresh naturalisation papers, which were granted in 1907. The applicant had joined the community of Passionist Fathers in 1892, and had continued in .Australia as a student- and priest in holv orders ever since. He had been advised that he was a British subject, and that any attempt to deport him from Australia would be illegal. An answering affidavit was filed by Mr T.fTrumble (Secretary for Defence), in which he said that on February 13, 1918. Jerger was interned in the concentration camp at Holdsworthy. On August 14, 1919, the Royal Commission appointed to deal with the question of the release of internees recommended that Jerger was an undesirable person to be released in the Commonwealth. The report. said in reference to Jerger: Under ordinary circumstances and his 48 years of residence under the British Flag, he should he allowed to remain here, but he still says that ho is a German. . . , He is a man of strong personality, and has been one of the leaders of the internees. His internment has made him vindictive and revengeful. Considering his conduct as alleged before internment, we think that the magistrate's decision that he be oompulsorily repatriated should not be interfered with. Action was being taken to repatriate the plaintiff when, owing to the illness of his mother, it was postponed. Further inquiries were then made, with the result that the Attorney-General's department reported : There is convincing proof that Father Jerger is German-born, and, producing no proof of naturalisation, was during the war an active propagandist against the cause of tho Allies. No reason is seen for disagreeing with the recommendation of the Aliens Board that he be deported. After hearing argument, the Chief Justice (reports the 'Argus 7 ) said that the Court had decided that the application must he dismissed. Father Jerger was born in Germany of German parents, and the onus was upon him to establish the fact that he was a British subject. The British Act of 1870. provided that a married woman should lis deemed to be the subject of a State of which her husband for the time being was a subject, anil that where the father or the mother, if a widow, had obtained a certificate of naturalisation the child of such father or mother should alxt be deemed a British subject. It was clear that his father had never obtained a naturalisation certificate, and it was equally clear that his mother, when a widow, never became naturalised. Therefore the provisions of that Act did not apply. Alternatively it was claimc-d that plaintiff was a British subject by virtue of the Commonwealth Naturalisation Act. 1903-17, which provided that a person not being a natural-bom British subject, whose motner was married to a person naturalised under the law of the Commonwealth or State, and who at the time of such naturalisation was an infant residing with his parents, should be deemed to be naturalised. In order to do that he was required to prove that his mother was married to a person naturalised under a law of the Commonwealth, that at thetime of such naturalisation he was an infant, and during such infancy he resided with -his parents in Australia. It- was alleged that his stepfather was naturalised under such law because he had been naturalised under a law of the' United Kingdom. The applicant could not relv upon the subsequent naturalisation of his stepfather in Australia in 1907, because at that time he was not an infant, nor was he residing with his parents. The meaning to be read into the Act was that the " Commonwealth" law was a law passed under the legislative authority of the Commonwealth. His stepfather's naturalisation under the British law was not naturalisation under a Commonwealth law, and he failed on that point also. It was therefore clear that plaintiff was not a British subject. The application would be dismissed, with costs.