Dvorani and Secretary, Department of Immigration and Multicultural Affairs
[2000] AATA 187
•10 March 2000
CATCHWORDS – IMMIGRATION – citizenship by descent – applicant's father an Australian citizen at time of applicant's birth – father returned to Albania – whether applicant's father ceased to be an Australian citizen under section 20 of the Nationality and Citizenship Act 1948, whether intention to remain permanently in particular place is relevant when considering "residence" – decision affirmed.
Acts Interpretation Act 1901 – s 15AA
Australian Citizenship Act 1948 – s 10C, s 10B, s 11
Crimes Act 1914 – s 71
Matrimonial Causes Act 1945
Nationality Act 1920 – s 11, s 24
Nationality and Citizenship Act 1948 – s 4, s 5, s 12, s 15, s 20, s 24, s 25, s 254
Nationality and Citizenship Act 1958 – s 7, s 23A, s 24, s 25
Nationality and Citizenship Bill 1948
Rules of Court Regulating the Admission of Practitioners 1955-1972, South Australia – rule 27, rule 28
The Constitution – s 117
Akbarali v Brent London borough Council [1983] 2 AC 309
Collector of Customs v Southern Shipping Co. Ltd (1962) 107 CLR 279, (1962) 36 ALJR 15
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151; (1981) 55 ALJR 434
Dare v Bellette (1994) 4 Tax R 138
Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417; (1975) 49 ALJR 287; (1925) 6 ALR 345
Federal Commissioner of Taxation v Westgarth (1950) 81 CLR 396; (1950) 24 ALJR 129
Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674
Henry v Boehm (1973) 128 CLR 482; (1973) 1 ALR 181; (1973) 47 ALJR 429
In the marriage of Brandon and Brandon (1990) 14 Fam LR 181
Keil v Keil [1947] VR 383
Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; (9175) 6 ALR 271; (1975) 49 ALJR 302
R v Leicestershire Justices (1850) 15 QB 88
Re Jolene Young (unreported, 12 August, 1996, IRTA 7569)
Re Secretary, Department of Social Security and Papagiannis (unreported, 2 February, 1999 [1999] AATA 31
Rippingale Farms Ltd v Black Sluice Internal Drainage Board [1963] 1 WLR 1347
The King v O'Donoghue (1917) 23 CLR 9
DECISION AND REASONS FOR DECISION [2000] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/650
GENERAL ADMINISTRATIVE DIVISION )
Re FLORA DVORANI
Applicant
AndSECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 10 March, 2000
Place Brisbane
DecisionThe Tribunal affirms the decision of the Respondent dated 26 May, 2000.
S A Forgie
Deputy President
REASONS FOR DECISION
On 26 May, 1999, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") decided to refuse a request by the applicant, Mrs Flora Dvorani, to be registered as an Australian citizen pursuant to s. 10C of the Australian Citizenship Act 1948 ("the Act"). Mrs Dvorani applied for a review of that decision on 10 June, 1999.
At the hearing, Mrs Dvorani was represented by Mr Hamlyn-Harris of counsel and the Minister by Mr Gregg, an advocate in his Department. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Also admitted were: a copy of an opinion prepared in the Legal Opinions Section of the Department of Immigration and Multicultural Affairs ("Department") and sent to the Citizenship Policy Section of the Department on 13 July, 1995; a copy of the Nationality and Citizenship Act 1948 ("N & C Act 1948") and the Explanatory Memorandum to that legislation; a copy of the Nationality and Citizenship Act 1958 ("the Act") amending the N & C Act 1948; advice from the Australian Government Solicitor ("AGS") to the Department dated 14 September, 1998 and 4 November, 1999; a copy of a document entitled "Instructions to Officers in Australia on Nationality and Citizenship" and issued in May, 1951 by the then Department of Immigration; a curriculum vitae of Dr Zlatko Skrbis; a statement by Mr Nevrus Suleman dated 19 November, 1999; a statement by Mrs Hane Hysen dated 19 November, 1999; a letter dated 15 June, 1999 by Mr Refat Hysen; and a statement of Mr Gezim Suleman dated 19 November, 1999. Oral evidence was given by Mr Nevrus Suleman, Mr Gezim Suleman, Mr and Mrs Hysen and Dr Skrbis in support of Mrs Dvorani's case.
THE ISSUE
The issue in this case is whether Mrs Dvorani is entitled to be registered as an Australian citizen pursuant to s. 10C of the Act. The essential question to be considered in resolving that issue is whether or not her father, Mr Myrteza Suleman, who was an Australian citizen at the time of her birth, remained so at the time of his death on 3 July, 1973. Whether he did so or not depends upon whether he had resided outside Australia for a period of seven years on 25 February, 1956 and so had ceased to be an Australian citizen on that day pursuant to s. 20 of the N & C Act 1948.
BACKGROUND
Some matters were not in dispute between the parties and I have set them out in the following paragraphs. Others were in dispute and they relate to what Mr Suleman did while he was in Australia and on his return to Albania in 1949. The evidence on those subjects is necessarily limited by the fact that Mr Suleman has died and there is no documentary evidence or evidence from any person who knew him at that time. There is the evidence of his two sons. Much of that evidence is necessarily hearsay but, in so far as it can be supported by reference to historical facts and Albanian culture, it has been supported by the evidence of Dr Skrbis. Dr Skrbis is a lecturer in sociology at the Queensland University of Technology. His doctoral thesis, undertaken at Flinders University, was "Ethno-nationalism, Immigration and Globalism with Particular Reference to Second Generation Croations and Slovanians in Australia". The evidence of Mr Nevrus Suleman and Mr Gezim Suleman is supported also by reference to the evidence of Mr and Mrs Hane Hysen. Mr and Mrs Hysen left Albania in 1955. In view of these matters, I have accepted the evidence of Mr Nervus Suleman and Mr Gezim Suleman as to their father's activities in Albania.
Mrs Dvorani's father, Mr Suleman, was born in Albania either on 14 March, 1897 or 15 January, 1901. The former date is correct if regard is had to his death certificate (T documents, page 37) issued on 17 July, 1998 and the family certificate (T documents, page 41) issued by the Cardinal Register of the City of Korcë on 24 June, 1998. The latter date is correct if regard is had to the passport issued to him on 15 March, 1932 by the Commonwealth of Australia (T documents, page 71). A precise determination of Mr Suleman's date of birth is not required in this case.
Mr Suleman arrived at Sydney in Australia in 1916. His brother, Avdulla Suleman, moved to Australia some time later. Mr Avdulla Suleman lived in Spring Hill, a suburb of Brisbane, and worked for the railways at Northgate. It is not clear when Mr Suleman moved from Sydney to Brisbane but I find that he and his brother lived together until 1928. After a time, Mr Suleman moved to Biloela where he worked on a cotton farm. He eventually leased the farm from the owners.
Mr Suleman remained in Australia and, on 15 March, 1932, was granted a certificate of naturalization. From that date, he became "… entitled to all POLITICAL and other RIGHTS, POWERS and PRIVILEGES, and … [became] subject to all OBLIGATIONS, DUTIES, and LIABILITIES to which a NATURAL-BORN BRITISH SUBJECT is entitled and subject and, … has to all intents and purposes the status of a NATURAL-BORN BRITISH SUBJECT." (T documents, page 68). In 1935, he travelled to Albania on a six month visitor's visa. While there, a marriage was arranged with Mrs Dvorani's mother, Nadire, who was born on 4 May, 1915. They were married but Mr Dvorani returned to Australia in 1936 without his wife. He left Australia once more on 25 February, 1949 and did not return prior to his death on 3 July, 1973. During the whole of that time, he lived in Albania.
In 1935, Mr Suleman returned to Alabania as he knew that his family had arranged a marriage for him. He and his future wife had never met. The marriage had been arranged by their respective families in accordance with Albanian tradition. I accept that, even though he had spent many years in Australia, it is probable that Mr Suleman would have felt himself bound to honour Albanian tradition in the matter of his marriage. On the basis of the evidence of Mr Nevrus Suleman, I find that Mr Suleman returned to Australia in 1936 without his wife as he did not have sufficient funds to take her with him.
I also find that Mr Suleman returned to Australia to save money to bring his wife to Australia. He was able to leave Albania freely. At that time, Albania was a monarchy. In 1939, World War II broke out and Albania was occupied by foreign forces. A communist government was installed in 1944 with the help of Yugoslavia. That government continued to hold office at the end of World War II . An election was held in 1946 but the appearance of a popularly elected democratic government was offset by the fact that electors were offered only a closed list of candidates.
Up until 1946, Yugoslavia supported Stalin and the Soviet Union. In 1948, the Soviet Union tried to enforce its will on various socialist satellite states in Europe. This led to the Cominterm Resolution, which acknowledged the Soviet Union and a single road to socialism. Yugoslavia decided not to sign the Cominterm Resolution and communists in that country were expected to follow Tito rather than Stalin. The political situation in Yugoslavia was very tense and many communists who failed to support Tito were imprisoned. Albania decided to align itself with the Soviet Union in order to rid itself of Yugoslavia's influence but the political situation in Albania was no less tense than in Yugoslavia. If a person proclaimed friendship with a Yugoslav, he or she would be ostracised or put in a labour camp. Early in the 1960s, Albania left the Soviet Union and formed an alliance with China.
On the basis of Dr Skrbis's evidence, I find that it would have been very difficult for a person to communicate with anyone in Albania in 1948 or 1949. Telephonic communication would not have been possible and postal communication very difficult. The difficulty of communication would have meant that it was very difficult to have a clear picture of what was happening in Albania at the time. The election in 1946 might have given a person outside the country an impression that democratic procedures were being installed. With that background, I accept Mr Nevrus Suleman's evidence that his father had not known that "Albania was under deep communism" when he returned to it in 1949.
I also accept that, on the balance of probabilities, Albania had become a totalitarian state isolated from the world by 1949 and that it was very difficult and dangerous to leave it at that time. Life was most unpredictable and people could find themselves in favour one day and in a labour camp the next. To speak of experiences in an overseas country was to risk being regarded as a traitor to Albania. People did leave Albania between 1949 and the 1980s but I accept that it was most dangerous. That finding accords not only with the evidence of Dr Skrbis but also with that of Mr and Mrs Hysen who left Albania in 1955. The only means of leaving was furtively and by foot over the mountains. To travel with children would have made the journey almost impossible.
With regard to the difficulties of communication and the conflicting messages that the election of 1946 conveyed, I accept that Mr Suleman would not have known that he could not leave Albania even when he was at the point of crossing its border to collect his wife. I accept the evidence of Mr Hysen that people were not told that they could not leave when they entered Albania.
I also find that Mr Suleman would not, for all practical purposes, have been able to send a notice to an Australian consulate through Albanian postal services after his arrival in 1949. The evidence of all of the witnesses was to the effect that any form of contact, or any acknowledgement that there had been past contact, with the world outside Albania was regarded with deep suspicion not only by those in authority but by neighbours and acquaintances. That suspicion could ripen to allegations of betrayal of their country and anyone with such connections had to be extremely cautious not to speak of them lest they also come under suspicion. The evidence of Mrs Dvorani's brothers was to the effect that their father and their uncle in Australia had continued to correspond but only in very guarded terms. Against that background, I find that any attempt to address a letter to an Australian consulate, let alone enclose a notification of Mr Suleman's intention to retain his Australian citizenship, would have so endangered his personal liberty, if not his life, as to have been impossible.
I also accept that Mr Suleman did not return to Albania for any purpose other than to collect his wife. His connections with Albania were strong in a traditional sense and this was illustrated by his choice to return to it in 1936 for his marriage and his choice to return to it for his wife. His connections with Australia were also strong in the sense of its being the country in which he had chosen to live. He had left a brother in Australia. When he returned to Albania to marry in 1936, he had already lived in Australia for at least twenty years and so for a substantially longer period of time than he had lived in Albania. More importantly, he had spent his formative and his mature years in Australia and he chose to return to it rather than remain in Albania with his bride. As a mature person at least in his early 30s, he made a deliberate choice to seek naturalization in Australia. When he returned to Albania in 1949 he had lived in Australia for some thirty three years. The longevity of his connection with Australia and his seeking naturalization persuade me that he intended to return and that he had returned to Albania only so that he could accompany her on the journey to Australia. My conclusion is also supported by the evidence of Mr Nevrus Suleman and Mr Gezim Suleman that their father treasured his Australian passport and travel documents and impressed upon his children their importance. That he kept them, let alone treasured them, when I am satisfied on the basis of the evidence of Dr Skrbis that it was dangerous to have any connection with a foreign country is an indication of the strong and ongoing connection he felt with Australia.
There is no necessarily inherent inconsistency between forging permanent links with a new country while maintaining traditional connections with the old and incorporating its cultural values in the new. Taking into account all of the matters to which I have referred, I am satisfied that Mr Suleman had no intention of remaining in Albania beyond an amount of time reasonable to meet his wife and to arrange her affairs. His remaining in Albania beyond that amount of time was not something that he intended.
On the basis of the evidence of Mr Nevrus Suleman, I find that his father did not have any brothers or sisters in Albania when he returned in 1949. His wife did have siblings but Mr Nevrus Suleman did not know his aunts and uncles very well. Mr Suleman worked in Albania but there is no evidence as to when he first obtained employment. There is evidence that Mr Suleman and his wife lived in a privately owned house in 1949. Whether they owned it or whether it was owned by other members of the family is unclear. On the basis of the evidence of Mr Hysen, I find that, prior to 1949, it had been traditional for parents to pass property to their children. With the coming of communism, private ownership was seen as at the heart of capitalism and a lot of private property was lost to the State. I find on the basis of the evidence of Mr Nevrus Suleman that the house was demolished in order to make room for an apartment block and the family was allocated an apartment in that block.
Mr Suleman and his wife had three children: Mrs Dvorani born on 18
February, 1950; Mr Nevrus Suleman born on 16 February, 1954 and Mr Gezim Suleman born on 26 June, 1957. Both of Mrs Dvorani's brothers have been registered under s. 10C of the Act and so have become Australian citizens. This accorded with the legal advice that had been given to the Minister at the time. That legal advice was to the effect that Mr Suleman was an Australian citizen at the time of his death. After Mrs Dvorani's brothers had been registered under s. 10C, legal advice contradicting the earlier advice was given to the Minister.
LEGISLATIVE FRAMEWORK
Australian Citizenship Act 1948 - acquisition of citizenship by descent for person over 18 years
Part III of the Act is concerned with Australian citizenship. In general terms, Australian citizenship may be acquired by birth, adoption or descent or by a grant. Section 10C is concerned with the acquisition of citizenship by descent in the case of a person who was born outside Australia on or after 26 January, 1949, who was over the age of 18 years on the day on which s. 10C commenced (i.e. 15 January, 1992) and who failed, for an acceptable reason, to become registered as an Australian citizen under either s. 10B or s. 11 as it was in force at any time before the commencement of s. 10B (s. 10C(4)). If a person satisfies certain other criteria, to which I will refer shortly, and is registered under that section, he or she is an Australian citizen.
Section 10B is concerned with the acquisition of Australian citizenship by a person whose name is registered for the purposes of that section with an Australian consulate within 18 years of his or her birth. Section 11, as it was drafted before the commencement of s. 10C, was concerned with citizenship by descent through a person's natural mother. What is an "acceptable reason" for the purposes of s. 10C(4) is prescribed in s. 10C(5). Having regard to each of the reasons as they appear in that provision and in regulation 7H, and the context of s. 10C itself, it seems to me that s. 10C(4)(c) is predicated upon an assumption that the person could have become registered under either s. 10B or s. 11. If a person could never have become so registered, he or she cannot, in the context of s. 10C, be said to have "failed" to have done so. It is common ground that Mrs Dvorani was not entitled at any time to be registered under either s. 10B or s. 11.
In order to be registered, a person who meets the criteria I have set out, must first apply to the Minister in accordance with the approved form (ss. 10C(2) and (3)). He or she must then satisfy the Minister that, at the time of his or her birth, one of his or her natural parents was an Australian citizen (s. 10C(4)(a)). If he or she meets that criterion, he or she must then establish that his or her natural parent, who is an Australian citizen, was either an Australian citizen at the time of the application for registration or, if dead, was at the time of his or her death, an Australian citizen
(s. 10C(b)). Finally, the person seeking registration must be of good character.
Nationality Act 1920 – grant of a certificate of naturalization in 1932
As Mr Suleman's status as an Australian citizen or otherwise is crucial in this case, I have next turned to the status he acquired when he was granted a certificate of naturalization under the Nationality Act 1920 and the British Nationality and Status of Aliens Act 1914-1922 of the United Kingdom. Section 11 of the Nationality Act 1920 provided that:
"A person to whom a certificate of naturalization is granted by the Minister, shall, subject to the provisions of this or any other Act, be entitled to all political and other rights, powers and privileges, and be subject to all obligations duties and liabilities to which a natural-born British subject is entitled or subject, and, as from the date of his naturalization, have to all intents and purposes the status of a natural-born British subject:
Provided that where, by any provision of the Constitution or of any Act or State Constitution or Act or of any Ordinance of a Territory, a distinction is made between the rights, powers or privileges of natural-born British subjects and those of persons naturalized in the Commonwealth or in a State or Territory, as the case may be, the rights, powers and privileges conferred by this section shall, for the purposes of that provision, be only those (if any) to which persons so naturalized are therein expressed to be entitled."
Nationality and Citizenship Act 1948 – Australian citizenship and British nationality
The Nationality Act 1920 was repealed by the N & C Act which came into operation on 26 January, 1949. It provided for British nationality as well as Australian citizenship. Transitional provisions were set out in Part IV. Pursuant to
s. 25 of those transitional provisions, a person who was a British subject immediately prior to the commencement of the legislation became an Australian citizen on 26 January, 1949 if he was also a person naturalized in Australia (s. 25(1)(c)). Section 24 provided that, for the purposes of the transitional provisions, the expression:
"…'British subject' includes a person who was, immediately prior to the date of commencement of this Act, entitled in Australia or a Territory to all political and other rights, powers and privileges to which a natural-born British subject was then entitled."
As Mr Suleman was a person who met the criteria set out in s. 24 when he was granted a certificate of naturalization under the Nationality Act 1920, he was a British subject for the purposes of the transitional provisions in Part IV. The effect of s. 25 was that he became an Australian citizen on 26 January, 1949 as he was also a person who had been naturalized in Australia.
In so far as it is relevant in the context of this case, s. 7(1) of the N & C Act 1948 provided that:
"A person who, under this Act, is an Australian citizen … shall, by virtue of that citizenship, be a British subject."
It follows that, on 26 January, 1949, Mr Suleman also became a British subject by virtue of s. 7(1).
Nationality and Citizenship Act 1948 – provisions relating to the loss of citizenship
That brings me to s. 20 of the N & C Act 1948, which also came into operation on 26 January, 1949. In so far as it is relevant in this case, it provided that:
"An Australian citizen who … is a naturalized person and, after the date of the commencement of this Act, has resided outside Australia and New Guinea for a continuous period of seven years shall cease to be an Australian citizen
unless –(a)he has, at least once during the second and each subsequent year, or at such other times as the Minister, in special circumstances, allows, during that period, given the prescribed notice, at an Australian consulate, of his intention to retain his Australian citizenship;
(b)he has so resided by reason of his service under an Australian government or his services with an international organisation of which the Australian Government is a member or his service in the employment of a person, society, company or body of persons resident or established in Australia or New Guinea;
(c)he has given the notice referred to in paragraph (a) of this section for portion of that period and has had such service for the remainder of that period; or
(d)he is a person not of full age and resides with his responsible parent or his guardian who is an Australian citizen."
Nationality and Citizenship Act 1958 – repeal of s. 20
On 8 October, 1958, s. 20 of the N & C Act 1948 was repealed by s. 6 of the Nationality and Citizenship Act 1958 ("N & C Act 1958"). In recognition of the fact that a number of people had lost their citizenship by virtue of the operation of s. 20, the N & C Act 1958 inserted s. 23A in the earlier legislation. That section reads:
"(1) A person who, under section twenty of the Nationality and Citizenship Act 1948-1955, ceased to be an Australian citizen may, within one year after the date of commencement of this section or the date on which he attains the age of twenty-one years, whichever is the later, or within such further period as the Minister, in special circumstances, allows, make and furnish to the Secretary a declaration in accordance with the prescribed form that he wishes to resume Australian citizenship.
(2) The Secretary shall register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen."
CONSIDERATION
For the reasons I have already given, Mr Suleman was an Australian citizen once the N & C Act 1948 had come into operation. He was not an Australian citizen by registration. Was he a "naturalized person"? That expression was defined in s. 4 to mean, among other persons, "… a person who under any law … becomes a British subject … by virtue of … a certificate of naturalization granted to him …". Mr Suleman was granted a certificate of naturalization under the Nationality Act 1920. He was given the "status of a natural-born British subject" and was "… entitled to all political and other rights, powers and privileges, and … subject to all obligations duties and liabilities to which a natural-born British subject is entitled or subject …".
There is a question whether the conferral of this status and entitlement equated with a person's being a British subject and so with his or her being a naturalised person.
This question becomes particularly relevant when regard is had to s. 24 of the Nationality Act 1920. As I have already noted, it defined the expression "British subject" in terms inclusive of those who are "entitled in Australia … to all political and other rights, powers and privileges to which a natural-born British subject was then entitled." It could be argued that such an inclusive definition would not be needed if the conferral of these rights, powers and privileges were sufficient to grant a person the status of a British subject. That argument could be supported by reference to s. 11 of the Nationality Act 1920. That section not only acknowledged that a distinction could be drawn between the rights, powers and privileges of a natural-born British subject and those persons who were naturalised but also made no express reference to a person's being a British subject. Taking these arguments into account, it may be that Mr Suleman did not become a British subject when he was granted his certificate of naturalization but merely had the status of a natural-born British subject.
Even if that were so, could it then be said that Mr Suleman became a British subject "by virtue of a certificate of … naturalization granted to him" within the meaning of the definition of a "naturalized person" in s. 4 of the N & C Act 1948? The expression "by virtue of" has been considered in the context of criminal offences of larceny or of embezzlement of money that has come into a person's possession " by virtue of his employment". Such an offence was found in s. 71 of the Crimes Act 1914, which was considered by the High Court in The King v O'Donoghue (1917) 23 CLR 9 when two questions were reserved for it pursuant to the Judiciary Act 1903. The effect of the High Court's answers was that, as reported in the head note:
"… property does not come into the possession of an officer of the Commonwealth 'by virtue of his employment,' within the meaning of sec. 71 of the Crimes Act 1914-15, unless he had authority as such an officer to receive it."
It follows that, in practical terms, the expression, "by virtue of", means that there must be a causative connection between two factors. In the case of a charge under s. 71 of the Crimes Act 1914, the causative connection must be between the acquisition of the money, that is ultimately embezzled or stolen, and a person's acquiring that money because he or she is authorised to do so because of his or her employment. It is not enough that there is a causative connection between the acquisition of money, that is ultimately embezzled, and the opportunity (rather than the authorisation) which a person's employment may give him or her to acquire that money. Therefore, in determining whether the necessary causative connection exists, it is necessary to look beyond the fact of employment simpliciter and look to the scope of the authority that the person is given by that employment.
In the context of the N & C Act 1948, the words "by virtue of" mean that there must be a causative connection between Mr Suleman's becoming a British subject and his being granted a certificate of naturalization. In establishing that connection, regard is not confined to the mere fact of the grant of the certificate itself but to the consequences of its being granted. A consequence of the certificate of naturalization, was that Mr Suleman was a British subject for the purposes of the transitional provisions of the N & C Act 1948 (s. 24). He did so as his certificate of naturalization entitled him "… in Australia … to all political and other rights, powers and privileges to which a natural-born British subject was then entitled" (s. 24). As a British subject, he became an Australian citizen on 26 January, 1948 as he was a person naturalized in Australia (s. 25(4)). As he was an Australian citizen under the N & C Act 1948, he became a British subject on 26 January, 1949 (s. 7(1)). It follows that there is a causative connection between the grant of the certificate of naturalization to Mr Suleman and his becoming a British subject. He became a British subject "by virtue of a certificate of … naturalization granted to him." The consequence of that conclusion is that Mr Suleman was a "naturalized person" within the meaning of s. 4 (see paragraph 28 above).
As Mr Suleman was a naturalised person, he came within the purview of s. 20 of the N & C Act 1948. The next issue is whether or not Mr Suleman resided outside Australia for a continuous period of seven years after he left Australia on 25 February, 1949. Mr Suleman did not leave Albania before he died on 3 July, 1973. That was twenty four years after his return. There is no question, and I am satisfied, that he did not give the prescribed notice at an Australian consulate as required by s. 20(a) and he did not reside overseas as a result of employment with the bodies specified in s. 20(b). I am also satisfied that Mr Suleman did not leave Albania at any time in the years following 1949 and until his death on 3 July, 1949.
In essence, Mr Hamlyn-Harris's primary submission was that a person's intention is a crucial factor in considering whether or not he or she can be said to have "resided" outside Australia. If a person remained outside Australia for a period but did not intend to remain permanently outside Australia, he or she could not be said to have resided outside Australia during that period. A secondary submission was that s. 20 should be read down according to the principle of lex non cogit ad impossibilia. If it were read down according to that principle, he submitted, s. 20 would be interpreted so that Mr Suleman's citizenship would not be terminated if it were established that it was impossible for him to give the prescribed notice as required by s. 20(a). Mr Hamlyn-Harris's further secondary submission was that, if the literal meaning of s. 20 required that no regard be paid to a person's intention, that literal meaning should be disregarded in favour of an interpretation that accords with the intention of the legislature.
The essence of Mr Gregg's submission is that intention is irrelevant in deciding whether a person has "resided outside Australia" for the purposes of s. 20 of the N & C Act 1948. Even if the principle of lex non cogit ad impossibilia is applicable in interpreting s. 20, it is not a case in which it was impossible for Mr Suleman to comply with its requirements; merely difficult and dangerous. With regard to the submission that the literal meaning of s. 20 should be disregarded in favour of an interpretation that reflected Parliament's intention, Mr Gregg submitted that the interpretation he had put forward did reflect Parliament's purpose.
I note at the outset that, on its face, s. 20 applies to a person regardless of whether or not he or she was outside Australia on 26 January, 1949 when the section came into operation or whether he or she subsequently travelled outside Australia. In this case, Mr Suleman left Australia after that date. Section 20 applies to him if he comes within its terms.
The word "reside" and its related forms have been considered in a number of cases. They have shown that the word may have various nuances of meaning depending on the context in which it is used. Some of those meanings have been summarised by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444:
"There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J:
'The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.'
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VR 383 – a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place – Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 – together with an intention to return to that place and an attitude that that place remains 'home': see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght (supra) and the reference by Williams J to 'a home or homes' – and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as 'home', a change of intention may be decisive of the question whether residence in a particular place has been maintained." (pages 449-450)
Wilcox J went on to observe that "… a mere temporary absence from a country would ordinarily not cause a person to cease to be resident in that country; the notion of residence accommodates temporary absences." (page 450)
My attention has been drawn to several other cases which have also considered the meaning of "reside" or "resident": Re Jolene Young (unreported, 12 August, 1996, IRTA 7569) and Re Secretary, Department of Social Security and Papagiannis (unreported, 2 February, 1999, [1999] AATA 31). They have adopted and applied the principles applied in Hafza. In the case of In the marriage of Brandon and Brandon (1990) 14 Fam LR 181, Bulley J was concerned with the notion of "habitual residence". His Honour observed that residence is a question of fact and referred to the case of Keil v Keil, to which Wilcox had referred in Hafza. Barry J in Keil v Keil had said:
"'There is not much difficulty in defining the residence of an individual; it is where he sleeps and lives', per Huddleston B. (Cesena Sulphur Co v Nicholson [1876] 1 Ex D 428, at p. 452). 'The place of residence of a person is where he eats, drinks and sleeps', per Ridley J. (Stoke-On-Trent Council v. Cheshire Council [1915] 3 K.B. 699, at p. 706). When the enquiry is whether a person is resident in a State the conception of residence is, I think, broader than when the question is whether he is resident in a particular place. A party is resident in Victoria when he has lived in Victoria for a length of time which can reasonably be said to be sufficient to exclude the notion that his presence there is merely transient." (page 387)
In Keil v Keil, Barry J was considering a petition for dissolution of marriage under the Matrimonial Causes Act 1945 presented by Mr Keil who had been interned in Australia at the outbreak of World War II. He was a German subject who was domiciled in Germany. At no time did he have any intention of settling in Australia. He had been in Australia simply because his presence had been required in the course of his employment as a wool buyer. Before the Supreme Court of Victoria could exercise jurisdiction under the Matrimonial Causes Act, it had to be established that the petitioner was a resident of Victoria. After setting out the principles I have reproduced in the previous paragraph, Barry J said:
"Having regard to the situations arising from the war with which the legislation was devised to deal, I do not think that the circumstance that the petitioner has lived and is living in Victoria by compulsion deriving from the exigencies of war, and not caused by any criminal act of his, deprives his presence in Victoria of the character of residence. Usually an element of choice is involved in the conception of residence, but I do not think it is a necessary element in the residence contemplated by this legislation. In any instance the meaning to be given to the words 'residence' and 'resides' and the expression 'is resident' must be gathered from the Act in which they are found (Australasian Temperance and General Assurance Society v Howe [1922] 31 CLR 290, at p. 297). The English Court of Appeal has held that residence is a term which may be applicable in the case of a lunatic. In In re X.Y. ([1937] Ch. 337, at p. 341) Lord Wright M.R. observed, 'the word 'residence', as used in this Act [Lunancy Act 1891 (54 & 55 Viet., c.65)], must mean residence in fact, even though the resident in question is, having regard to his state of mind, not capable of the volition which is generally considered as being essential to residence'. (See also, per Salter J., Berkshire County Council v. Reading Borough Council [1921] 2 K.B. 787, at p. 798]). It is to be observed that the benefit of Part II of the Act is available to either spouse. By virtue of section 4, the husband in the marriage affected must be a person not domiciled in Australia, and he may be a member of an overseas naval, military or air force. The residence of such a serviceman (who may have been conscripted) in a State during his service in Australia would ordinarily not be by his choice, but in obedience to the orders of superior authority. I find, therefore, that petitioner is resident in Victoria, and that he is entitled to bring these proceedings in this Court. …" (pages 387-388)
While it is apparent from Keil v Keil that a person's intention to stay in a place and to make it his or her abode may not necessarily be a relevant consideration in determining where a person is resident, his or her physical presence in a place may not be required for him or her to be a resident in a particular place. That was a view expressed in Henry v Boehm (1973) 128 CLR 482 (Barwick CJ, McTiernan, Menzies and Gibbs JJ, Stephen J dissenting) in the context of s. 117 of the Constitution. Section 117 provides:
"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
Barwick CJ said:
"Section 117 contemplates by its terms the case of a resident of a State being in another State without having lost his residence in the first-mentioned State. The rule established by the section is that, whilst remaining a resident of the first-mentioned State he will not, whilst in the second State, be subject to any disability or discrimination to which he would not be subject if he were a resident of that second State. That is to say the Constitutional prohibition is against the imposition by a State of any disability or discrimination based on the fact that the person subject to it is a resident of another State and to which a resident of the legislating State is not equally subject." (page 487)
Gibbs J also considered the meaning of "resident" as it is used in
s. 117:
"The word 'resident' can be used in a variety of senses. The word appears in other sections of the Constitution, ss. 34, 75(iv) and 100, and although it is there used as a noun, whereas in s. 117 it is used as an adjective, it seems to me that in the latter section as well as in the earlier it connotes some idea of permanence : see Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290, at pp. 295) and Coates v Coates ([1925] VLR 231, at p. 235). In their early Commentary on the Constitution, Quick and Garran said, at p. 960: 'In this section' (117) '"a resident in any State" means a person who permanently lives in a State ; one who is not a mere visitor or sojourner ; one who by his continued residence in a State has become identified with it and is regarded as one of its people.' This statement seems to me to give the general notion of the meaning of the word 'resident' in s. 117, although the reference to permanence should not be thought to suggest that 'resident' in this section means 'domiciled', and the reference to 'continued residence' does not mean that continuous physical presence within the State is necessary to make a person a 'resident'. In this regard I agree with the Full Court of the Supreme Court of Queensland in Commissioner of Taxes v. Parks ([1933] St. R. Qld. 306), that the master of an inter-State trading vessel could be resident in New South Wales within the meaning of s. 117 notwithstanding that he was compelled by the exigencies of his avocation to be bodily absent from that State during the greater part of the year." (pages 496-497)
The High Court considered s. 117 in relation to rules 27(1) and 28(2) of the South Australian Rules of Court Regulating the Admission of Practitioners 1955-1972. Those rules required a person, who had been admitted elsewhere, to meet certain criteria before he or she could be admitted to practise as a barrister and solicitor in South Australia. Among those criteria was that a person:
"… previously admitted elsewhere shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission." (rule 27(1))
Rule 27 did not apply to persons who, among others, ordinarily resided in, and were domiciled in, South Australia (rule 27(2)(i)). A person who had been admitted elsewhere was granted conditional admission and had to satisfy the Supreme Court that he or she had "continuously resided" in the State for the following twelve months before being granted absolute admission (rule 28(2)).
Gibbs J noted that:
"Rule 27 draws a distinction between continuous residence (r. 27(1)) and ordinary residence (r. 27(2)). Sub-rule (1) requires the applicant to be physically present in the State for a continuous period of three months, whether or not he ordinarily resides elsewhere. This requirement applies equally to applicants who are ordinarily resident in the State and to those who are not. A person ordinarily resident in South Australia would not satisfy the requirements of the rule if, for example, he had first moved into that State and established his home there less than three months before the date of filing his application or if, although at all times having his permanent home in the State, he was in fact absent from the State studying overseas during that three months' period. It was submitted that a resident of Victoria who wished to satisfy the rule would have to abandon for the time being his residence in Victoria whereas a resident of South Australia would merely continue his residence in that State, and that there was accordingly a discrimination based solely on residence. I cannot agree with this submission. In my opinion it is not right to say that the rule would require the Victorian to abandon his permanent residence in Victoria ; what it requires is his physical presence in South Australia for the continuous period of three months …" (pages 497-498)
These cases are useful in illustrating the various meanings given to the word "reside" or "residence", but it is important to return to "the wording, and underlying purposes, of the particular statute in relation to which the question arises", as Wilcox J said in Hafza v Director-General of Social Security. It is important, then, to return to the wording and underlying purpose of the N & C Act 1948 in order to determine the particular meaning that should be adopted to the word "resided" as it is used in s. 20.
I have first looked to the manner in which the words "reside", "resident" and "residence" are used in various sections of the legislation. Section 12, for example, sets out the criteria required of citizenship by registration. Among those criteria is the requirement that a person has "… resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, for not less than five years during the eight years immediately preceding the date of the application …" (s. 12(1)(b)). Another is that a person has an adequate knowledge of the English language or, if he or she does not have such a knowledge, "… that he has resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a continuous period of not less than twenty years" (s. 12(1)(d)). A woman who was married to an Australian citizen and "… is residing with her husband in Australia or New Guinea as a permanent resident" could also be granted a certificate of registration as an Australian citizen (s. 12(2)). Section 15 also refers to an aggregate of periods of residence and a continuous period of residence and does so in the context of setting the criteria for the grant of a certificate of naturalization as an Australian citizen.
The concept of "ordinarily resident" is introduced in s. 25 to which I have already referred. It is concerned with the recognition of persons, who were British subjects on 26 January, 1949 and who met certain criteria. Among those criteria was the requirement that the person had been "ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years" (s. 25(1)(d)). The expression "ordinarily resident" is defined in
s. 5(3)(e) in the following terms:
"a person shall be deemed to be ordinarily resident in a country if –
(i)he has his home in that country; or
(ii)that country is the country of his permanent abode notwithstanding that he is temporarily absent therefrom,
but he shall be deemed not to be so resident if he resides in that country for a special or temporary purpose only."
There are, then, in the N & C Act 1948 references to a person's residence in a particular place, aggregates of periods of residence in a particular place and continuous periods of residence in a particular place, as well as ordinary residence, which is defined in terms of permanent abode while at the same time permitting temporary periods of absence from that abode to be overlooked.
On its face, the purpose of the N & C Act 1948 was to create Australian citizenship and establish the terms upon which it could be acquired or lost, provide that an Australian citizen was also a British subject and recognise that certain citizens of certain other countries were also British subjects. Having regard to that purpose and to the structure of the legislation, it seems to me that the meaning to be given to the notion of "residence" does not alter according to whether an aggregate of residence is being considered or whether it be permanent or some other form of residence referred to in the legislation. The word "residence" bears its ordinary meaning as the place at which a person eats and sleeps and habitually lives. Encompassed within that ordinary meaning is the concept that a person may have more than one place at which he or she does these things and so may have more than one residence.
What alters in the context of the N & C Act 1948 is not the meaning of "residence" or "reside", as the case may be, but the meaning given to the particular expressions incorporating one or other of those words. In ascertaining, for example, whether a person is "ordinarily resident" in a country, both physical presence and intention will be relevant considerations for temporary absences do not necessarily disentitle a person from being regarded as ordinarily resident in a country. Intention will be relevant in a number of ways. If, for example, a person had very recently moved to a country, his or her intention would be relevant in determining, as a matter of fact, whether it was a country in which he or she had his or her home or permanent abode or whether his or her presence was merely transient. Equally, intention may be relevant if he or she were to leave for a period a place at which he or she had established a home or a permanent abode. Whether or not he or she intended to return may be relevant in determining whether, as a matter of fact, he or she intended to continue to retain that place of abode and so whether or not he or she continued to reside there. Intention may also be a factor that is relevant in establishing whether or not a person is a permanent resident in a particular place.
When one turns to s. 12 and s.15, it seems to me that intention is no longer relevant. Both make reference to an aggregate that is, in effect, a simple arithmetical calculation to be made of the time during which a person has resided in Australia or New Guinea. In certain circumstances, both refer to continuous periods of residence. When the provisions relating to an aggregate and to a continuous period of residence are seen against the provision in s. 5(3)(e) relating to a person's being ordinarily resident in a place, it seems to me that, in undertaking that calculation, both ss. 12 and 15 are referring simply to the amount of time in which a person has had his or her settled or usual abode in the specified countries. Both do so without regard for the manner in which he or she regards that abode i.e. without regard for whether or not he or she wishes to remain there permanently or on a transient basis. Unlike the definition of "ordinarily resident" in s. 5(3)(e), neither refers to the notions of "home" or permanency, both of which would require some enquiry into a person's intention in relation to the place. As s. 20 speaks purely in terms of residence in contradistinction to the terms used in the definition of "ordinarily resident", I have also concluded that it does not require any consideration of a person's intention. The fact that he or she has lived in a place is sufficient to say that he or she has resided there.
Is the voluntariness, or otherwise, of a person's residing in a place, a relevant consideration under s. 20 of the N & C Act 1948? Barry J in Keil v Keil considered that it was not although, in considering the words, "ordinarily resident", Scarman LJ had said that they referred "… to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration." (emphasis added) (Akbarali v Brent London Borough Council [1983] 2 AC 309 at 343)
Barry J reached his conclusion in Keil v Keil on the basis of the particular provisions of the Matrimonial Causes Act. It was not reached on the basis of any general proposition that the voluntariness of a person's choosing where he or she had his or her abode is irrelevant in considering whether or not a person is resident in a particular place.
Is the voluntariness of a person's choosing to make his or her abode in a particular place relevant under the N & C Act 1948 and, in particular, under s. 20? I think not. If voluntariness were relevant, there would be no need to exclude from the operation of s. 20 those who have resided outside Australia by reason of a person's service under an Australian government or with certain international organisations. While a person may choose whether or not to accept employment of this type, once employed, the place at which he or she performs the duties of that employment would not ordinarily be a matter of choice for the individual. It would be a matter of choice for the Australian government or the international organisation. Choice, therefore, is not a relevant consideration in determining whether or not a person is resident in a particular place.
Before leaving the construction of s. 20, I should turn to Mr Hamlyn-Harris's submission that the literal meaning may be departed from if that meaning would produce an outcome inconsistent with the intention of the legislature. He relied upon Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 in which Gibbs CJ had said:
"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, 'is to see what is the intention expressed by the words used' …" (page 304)
Stephen J had said:
"… if literal meaning is to be departed from, it must be clear beyond question both that literal meaning does not give effect to the intention of the legislature and that some departure from literal meaning will fulfil that intent." (page 310)
These statements of principle are consistent with s. 15AA in the Acts Interpretation Act 1901 that provides:
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
I have already set out the purpose of the N & C Act 1948 as it appears from its face (see paragraph 49 above). That purpose is confirmed when regard is had to the Explanatory Memorandum that accompanied the Nationality and Citizenship Bill 1948. The interpretation that I have given s. 20 is also confirmed by the summary in the Explanatory Memorandum of those situations in which citizenship is lost. It reads, in part, that:
"Citizenship will be lost in the following circumstances:-
…(iv)in the case of a person who became a citizen through registration or naturalization –
(a)by residence outside Australia for seven years, unless he notifies the Department or a Consulate of his intention to remain a citizen or unless he is abroad in Government service;
…"
Mr Hamlyn-Harris also submitted that s. 20 should not be given a literal interpretation but should be read down according to the principle of lex non cogit ad impossibilia. As the situation that prevailed in Albania during the years following his return in 1949 meant that it was impossible for Mr Suleman to give the appropriate notice to the Australian consulate, his non-compliance should be excused so that s. 20 did not come into effect to deprive Mr Suleman of his Australian citizenship. In support of his submission, Mr Hamlyn-Harris referred to an extract from Professor Pearce's book, Statutory Interpretation in Australia:
"Although authority is limited, it would seem that if a mandatory requirement in an Act cannot be complied with for some reason beyond the control of the person upon whom the duty is imposed, the obligation will not be insisted upon." (page 285)
Professor Pearce referred to two cases: R v Leicestershire Justices (1850) 15 QB 88 and Rippingale Farms Ltd v Black Sluice Internal Drainage Board [1963] 1 WLR 1347. The first is concerned with an obligation to give notice before instituting an appeal and the second with a duty imposed upon a Board to expend funds on drainage works. As it was impossible to give notice to a person who had died and funds could not be spent when, despite reasonable efforts to acquire them, a Board had none, compliance with both requirements was excused. In both cases, a duty was imposed upon a person. A duty had also been imposed upon a person in Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417, to which Mr Hamlyn-Harris referred. The duty in that case was to provide suitable employment for an injured worker. While impossibility of performance was not available on the facts of the case, McTiernan J acknowledged that the principle of lex non cogit ad impossibilia could apply in interpreting the particular statutory duty. The principle has also been relied upon in Dare v Bellette (1994) 4 Tas R 138 and referred to in Collector of Customs v Southern Shipping Co. Ltd (1962) 107 CLR 279, per McTiernan J at 291, and Federal Commissioner of Taxation v Westgarth (1950) 81 CLR 396, per Fullagar J at 415-416.
I do not consider that the principle has any application in the interpretation of s. 20. That section does not impose a duty, or a mandatory requirement, upon any person. It is simply prescribing that loss of Australian citizenship follows the occurrence of a particular event (i.e. a continuous seven year period of residence outside Australia) unless one of four circumstances applies to that event. None of those four circumstances is more than a circumstance. In particular, none in itself imposes a duty or an obligation upon the person to do, or refrain from doing, any act. That is so even though it may be that a person finds him or herself in the circumstance because of a duty or obligation quite unrelated to the terms of the N & C Act 1948 e.g. because of his or her employment.
As Mr Hamlyn-Harris submitted, it is, in interpreting a statute, "proper to adopt that meaning which will avoid consequences that appear irrational and unjust." (Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, per Gibbs J at 350). The meaning that I have adopted seems to me to lead to a result that is most unjust to Mrs Dvorani. Her father lost his Australian citizenship through circumstances beyond his control. He was not in any position to know that he could have regained it had he made a declaration under
s. 23A that he wished to resume his Australian citizenship and had done so within twelve months of the N & C Act 1958 coming into operation on 8 October, 1958. This is not a case, however, in which I am presented with a choice of meanings from which I may adopt one. Had I been, I could have adopted that which leads to a just result for her. As I have only a choice of one meaning, I cannot discard that meaning for another not intended by the legislature.
The injustice to Mrs Dvorani is compounded in this case by the fact that her two brothers have been registered as Australian citizens under s. 10C. They have been registered on the basis of a different view of the law adopted by the Minister's Department in the past. She has been refused because of the adoption of a different view. In making decisions, it is important that decision makers make them according to law. Although it is to be hoped that they will always interpret the law correctly and consistently, it is inevitable that, with the best will in the world, there will be occasions when they will review their interpretation, determine that it has been incorrect and apply a new interpretation consistently in the future. That is a matter for regret in any case but, in the circumstances of this case, it is a tragedy. The tragedy in this case is that the change in interpretation has led to siblings' being split. Had the second, and I think correct, interpretation been applied in relation to Mrs Dvorani's brothers, they would not have been registered as Australian citizens under s. 10C. Whether they would have applied to migrate to Australia would, in all likelihood, have been a matter which all siblings would have considered taking into account their bonds, their likelihood of success and their knowledge that, as their circumstances were similar, if one were successful, all would be successful. A change in the interpretation of the law, rather than a change in the law itself, has meant that a fundamental premis in their decision has been removed through no fault of their own. If she is to be reunited with her brothers, Mrs Dvorani is now faced with having to apply to migrate to Australia and to meet criteria not required of her brothers.
For the reasons I have given, I affirm the decision of the respondent dated 26 May, 1999.
I certify that the sixty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ..........................................
M Martinez AssociateDate of Hearing 19 November, 1999
Date of Decision 10 March, 2000
Counsel for the Applicant Mr S J Hamlyn-HarrisSolicitor for Applicant South Brisbane Immigration & Community Legal Service
Advocate for Respondent Mr R Gregg
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