Dvorani v Minister for Immigration and Multicultural Affairs

[2000] FCA 1302

FEDERAL COURT OF AUSTRALIA

Dvorani v Minister for Immigration & Multicultural Affairs [2000] FCA 1302

MIGRATION – whether appellant was entitled to be registered as an Australian citizen – whether appellant’s father was an Australian citizen at the time of his death – whether the appellant’s father had “resided outside Australia” for seven years – whether intention or voluntariness was necessary to establish residence – where the appellant’s father was forcibly held outside Australia for more than seven years

INTERPRETATION – “resided outside Australia” – whether the statutory context of “resided” imported a notion of intention or voluntariness – whether “resided” was unclear or ambiguous – whether parliament could have intended the statute to apply to the appellant’s father – where, absent an element of intention or voluntariness, the statute would be unjust

The Universal Declaration of Human Rights 1948 Art 15

Nationality Act 1920 (Cth) s 20

Australian Citizenship Act 1948 (Cth) s 10C
Nationality and Citizenship Act 1958 (Cth)
Acts Interpretation Act 1901 (Cth) s 15AB

Keil v Keil [1947] VR 383 distinguished
Commissioner of Inland Revenue v Lysaght [1928] AC 234 distinguished
Levene v Commissioners of Inland Revenue [1928] AC 217 distinguished
Commissioner of Taxation v Miller (1946) 73 CLR 93 distinguished
Street v Queensland Bar Association (1989) 168 CLR 461 cited
Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 applied

FLORA DVORANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 26 OF 2000

COOPER, TAMBERLIN AND KIEFEL JJ
BRISBANE
15 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q26 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	FLORA DVORANI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	COOPER, TAMBERLIN AND KIEFEL JJ
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal is allowed.

2.        The decision of the AAT is set aside.

3.The matter is remitted to the AAT for determination in accordance with these reasons.

4.        The respondent is to pay the costs of the appellant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q26 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	FLORA DVORANI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	COOPER, TAMBERLIN AND KIEFEL JJ
DATE:	15 SEPTEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the AAT”), constituted by a Deputy President, given on 10 March 2000. The Deputy President’s decision affirmed a decision of the Minister to refuse to register Ms Dvorani (“the appellant”) as an Australian citizen pursuant to s 10C of the Australian Citizenship Act 1948 (Cth) (“the Citizenship Act”). This Act was previously known as the Nationality and Citizenship Act 1948 (Cth).

2. Section 10C of the Citizenship Act relevantly provides:

   “Citizenship by descent for a person over 18 years old

   10C. (1) A person who is registered under this section is an Australian citizen.

   (2)       A person may apply to the Minister to be registered under this section.

   (3)      The application must be in accordance with the approved form.

   (4)The Minister must register, in the prescribed manner, an applicant for registration under this section if:

   (a)a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

   (b)that parent:

   (i)is an Australian citizen at the time an application under

   this section is made; or

   (ii)is dead and at the time of his or her death was an

   Australian citizen; and …” (Emphasis added)

3. The question for determination is whether subs (4) has been satisfied, particularly whether the father of the appellant (“Mr Suleman”) was an Australian citizen at the time of her birth, namely 18 February 1950, and remained so until the date of his death on 3 July 1973. The decision under appeal turned on the operation of s 20 of the Citizenship Act. Section 20 relevantly provided that:

   “An Australian citizen who … is a naturalised 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.”

4. This section poses the question whether Mr Suleman had resided outside Australia for a continuous period of 7 years which in turn requires interpretation of “resided”. The Deputy President decided that Mr Suleman had ceased to be an Australian citizen because by the time of his death he had resided outside Australia and New Guinea for a continuous period of seven years and had not satisfied subs 20(a).

5. Section 20 was repealed by s 6 of the Nationality and Citizenship Act 1958 (“the 1958 Act”) which commenced operation on 8 October 1958.

6. The 1958 Act recognised the fact that a number of persons had lost their citizenship by virtue of s 20 of the Citizenship Act. When s 20 was repealed a new s 23A was inserted into the Citizenship Act in order to enable such persons to resume Australian citizenship. Section 23A reads as follows:

   “(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.” (Emphasis added)

7. The appellant’s father left Australia for Albania in February 1949.  By 8 October 1958 the appellant’s father had been living in Albania for a continuous period of more than seven years.  There is no evidence that he gave any notice under s 20 or indeed that he was ever aware of the provisions of either of the above Acts.  It is common ground that no declaration was furnished to the Secretary as provided for in s 23A.  However Mr Suleman remained in Albania against his will and the appellant contends that the word “resided”, as it appears in s 20, requires an element of intention or voluntariness.  For the purposes of s 20 it is said that a person cannot reside outside Australia against their will.

   FACTUAL BACKGROUND

8. The factual background and findings are set out in the decision of the Deputy President.  Mr Suleman was born in Albania either on 14 March 1897 or 15 January 1901.  Due to uncertainty in records it was not possible to make a specific finding on this matter but, in any event, a precise determination of his date of birth is not required.  Mr Suleman arrived in Australia in 1916.  His brother moved to Australia at some later time and came to live in a suburb of Brisbane where he was employed by the Railways’ Department.  Mr Suleman moved from Sydney to Brisbane and the two brothers lived together until 1928.  After a time the appellant’s father moved to Biloela in Queensland where he worked on a cotton farm.  He eventually leased the farm from the owners.

9. Mr Suleman remained in Australia and on 15 March 1932 was granted a certificate of naturalisation under s 11 of the Nationality Act 1920.  That certificate is in evidence.  It was executed by the Governor General, Sir Isaac Isaacs, and after naming Mr Suleman states:

   “ … I, the said Governor-General, with the advice of the Federal Executive Council, grant to the said Myrteza Suleman, this Certificate of Naturalisation whereby, subject to the provisions of the above-mentioned Acts, and of any other law affecting the rights of naturalised persons, the said Myrteza Suleman, becomes entitled to all Political and other Rights, Powers and Privileges, and becomes subject to all Obligations, Duties and Liabilities to which a Natural-Born British Subject is entitled and subject and, as from the date of these presents, has to all intents and purposes the status of a Natural-Born British Subject.

   Given under my hand and the Great Seal of the Commonwealth of Australia at Sydney the Fifteenth day of March One thousand nine hundred and Thirtytwo.”

10. In 1935 Mr Suleman travelled to Albania on a six month visitor’s visa.  He married the appellant’s mother who was born on 4 May 1915.  Mr Suleman returned to Australia in 1936 without his wife.  The Deputy President found that Mr Suleman returned without his wife because he did not have sufficient funds to bring her with him.  He returned to Australia to save money in order to bring his wife to Australia.  At that time he was able to leave Albania freely.  Mr Suleman returned to Albania once more on 25 February 1949 for the purpose of bringing his wife to Australia.  He did not return to Australia prior to his death on 3 July 1973.  During the whole of that time he was in Albania.

11. The Deputy President found that it would have been very difficult for a person to communicate with anyone in Albania in 1948 or 1949 because telephonic communication was not then possible and postal communication was very difficult.  The Deputy President accepted that by 1949 Albania had become a totalitarian state isolated from the world and that it was dangerous to leave it between 1949 and 1980.  She accepted that Mr Suleman would not have known, even up to the point when he crossed the border, that when he went to Albania to collect his wife in 1949 he would be unable to leave.  There is also a finding that Mr Suleman would not have been able to send a notice to an Australian Consulate through Albanian postal services after his arrival in 1949 and that any attempt to address a letter to an Australian Consulate, let alone enclose a notification of an intention to retain Australian citizenship, would have so endangered his personal liberty, if not his life, as to have been impossible. 

12. The Deputy President accepted that Mr Suleman’s sole purpose in returning to Albania was to collect his wife, and further that his connections with Australia were strong in the sense of it being the country in which he had chosen to live.  Mr Suleman did not have any brothers or sisters in Albania when he returned in 1949 although his wife did have some siblings.

13. Mr Suleman and his wife had three children in Albania. The present appellant was born on 18 February 1950, Mr Nevrus Suleman was born on 16 February 1954 and Mr Gezim Suleman was born on 26 June 1957. Both of the younger brothers of the appellant have now been registered under s 10C of the Citizenship Act and have become Australian citizens. They were registered as citizens in accordance with legal advice which had been given to the Minister at the time of their applications. The substance of that legal advice was that Mr Suleman was an Australian citizen at the time of his death, thus entitling his children to be registered. After the brothers had been registered, but before Ms Dvorani was registered as a citizen, contradictory legal advice was obtained by the Minister with the consequence that Ms Dvorani’s application for Australian citizenship was refused. At the conclusion of her reasons we note that the Deputy President observed that the meaning which she had adopted led to a result that was “most unjust” to the appellant and that this injustice was compounded by the fact that her two brothers had been registered as Australian citizens under s 10C. She described the circumstances as a “tragedy” in the sense that a change in interpretation had led to siblings being split and because the appellant was faced with having to apply to migrate to Australia and meet criteria which had not been required of her brothers.

14. It is not disputed that Mr Suleman became an Australian citizen on 26 January 1949, pursuant to s 25 of the Citizenship Act. This was a consequence of his status as a British subject. Mr Suleman’s status as a citizen when he left Australia was not challenged.

15. The Deputy President decided that as Mr Suleman was a naturalised person he came within s 20 of the Citizenship Act. She was satisfied that Mr Suleman did not give the prescribed notice at an Australian consulate as was required by subs 20(a) and did not leave Albania at any time in the years following 1949. Accordingly, by the time of his death in 1973 Mr Suleman was no longer a citizen, and the appellant did not come within s 10C of the Citizenship Act.

    “RESIDED OUTSIDE AUSTRALIA” – THE AAT’S DECISION

16. In relation to the expression “resided outside Australia” the Deputy President’s view was that the words were clear and unambiguous.  Her conclusion was that intention in the sense of voluntariness was irrelevant, and that the only meaning which the word “reside” was capable of bearing in the present case was its ordinary meaning: the place at which a person in fact eats, sleeps, and habitually lives. She agreed that in some contexts expressions such as “ordinarily resident” may involve an element of intention but that in the context of s 20 of the Citizenship Act state of mind or voluntariness was not relevant.

17. The Deputy President’s reasons for decision canvass in some detail the various uses of the word “reside” and cognate words and, in particular, reference is made to a number of cases: Hafza v Director General of Social Security (1985) 6 FCR 444 at 449-450 (Wilcox J); Keil v Keil [1947] VR 383 at 387-388 (Barry J); Henry v Boehm (1973) 128 CLR 482 at 487, 496-498; Commissioner of Inland Revenue v Lysaght [1928] AC 234 at 248, Levene v Commissioners of Inland Revenue [1928] AC 217 at 225 and Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99-100, and 103-104. The Deputy President concluded that while these cases were useful to illustrate the various meanings which the expressions “reside” or “residence” could bear, when an interpretation question arose it was essential to consider the wording and the underlying purposes of the Statute in question. In the present case the meaning of the expression “resided outside Australia” was said to be clear and it was therefore not necessary to look beyond the words of the Citizenship Act for assistance.

    THE APPELLANT’S CASE

18. Before us counsel for the appellant submits that the expression “resided outside Australia” as it appears in s 20 was never intended to apply to circumstances such as those in which Mr Suleman was placed between 1949 and his death in Albania.  It is submitted that the expression, read in context, is capable of more than one meaning and that therefore it is appropriate on established principles of interpretation to consider secondary materials, and to take into account the practical and arbitrary effect of the interpretation adopted by the Deputy President.  Counsel submits that when these considerations are taken into account it is evident that s 20 was never intended to apply where a person could not leave the country in which s/he was detained or was unable to give the notice required by s 20.  The purpose of s 20, so it is said, was to remove citizenship from persons who had no intention of returning to Australia or who wished to exploit the advantage of Australian diplomatic protection or other rights of citizenship while retaining no commitment to Australia.  The notice provisions as to Australian citizenship are only one of a number of ways to evidence a relationship with the Australian community and underlying the section is the central notion of abandonment or cessation, or intention to abandon or cease, membership of that community.

    “RESIDED OUTSIDE AUSTRALIA” – REASONING

19. Before resorting to extrinsic materials to interpret the expression “resided outside Australia” it is first necessary to determine whether when read in context it is ambiguous or obscure: see s 15AB of the Acts Interpretation Act 1901 (Cth). If the expression is ambiguous or obscure then extrinsic material may be considered.

20. The statutory context in which the words “resided outside Australia” is placed is Part III of the Citizenship Act. This is concerned with “Australian Citizenship”. The relevant Division of Part III is Division 4 which is concerned with “Loss of Citizenship” and which, upon its enactment, contained sections 17 to 23. These sections provided that Australian citizenship is lost if:

    ·    Citizenship of another country is acquired by “some voluntary and final act” on the part of an Australian living abroad: s 17;

    ·    A person renounces their Australian citizenship: s 18; or

    ·    The Australian citizen is also a citizen of another country and serves in the armed forces of that country while it is at war with Australia; s 19. 

    Section 21 empowers the Minister to deprive a person of citizenship in a number of circumstances including those in which there is a manifestation of disloyalty or disaffection towards the Crown, unlawful trading or communication with an enemy at war or where a person is registered by fraud.  Section 23 empowers the Minister to deprive children of their Australian citizenship where the parents have been deprived of citizenship.

21. In our view this legislative context contains a common element of choice, voluntariness or intentional action.  Indeed, s 20 itself includes a mechanism whereby a person may make an express declaration of intention at an Australian consulate.  This is perhaps the clearest way of establishing a person’s subjective position in relation to the Australian community, although it is not the only way.

22. In addition, the notion of “residence” is referred to in Part III of the Act in relation to the acquisition of citizenship. Section 11, for example, refers to citizenship where a parent was “ordinarily resident in Australia”. Section 12 refers to a person having “resided” in Australia and to a woman “residing” with her husband as a “permanent resident”.

23. Essentially the submission for the Minister is that the words “resided outside Australia” are equivalent to and mean no more than “being outside” or “remaining outside” Australia.  On the view we take of the context provided by Part III, this submission must be rejected.  It is clear that residence requires an element of intention in s 20.  Indeed, if the Minister’s position was correct then one may ask why is it that the Act speaks of “residing” outside Australia when it would have been quite simple and unambiguous, as a matter of drafting, to eliminate any suggestion of “voluntariness” and simply look to the factual position as to whether a person was outside Australia.

24. The word “reside” and cognate expressions are capable of different nuances in relation to intent.  However the term “reside” often has overtones or connotations of intention to remain for a period, but this is not always the case.  As McHugh J said in Street v Queensland Bar Association (1989) 168 CLR 461 at 586:

    “Resident” is a word with a number of shades of meaning. In a legal document, its precise meaning will usually depend more upon context than on the dictionary definition. Nevertheless when used as a noun, it will prima facie refer to a person who resides permanently in a place. When used as an adjective, however, as it is in s 117, some lesser connexion than permanence with a place may make a person “resident” in that place” (Citation omitted).  (Emphasis added)

1. In the course of argument reference was made to the three tax cases: Commissioner of Inland Revenue v Lysaght [1928] AC 234, Levene v Commissioner of Inland Revenue [1928] AC 217 and Commissioner of Taxation v Miller (1946) 73 CLR 93. These were cited by the Deputy President but are not conclusive of the present question. They only establish that in the context of the particular revenue Statutes there under consideration the word “residence” is to be given its “ordinary” meaning. This does not mean that a similar approach should be taken in relation to use of the expression in the different statutory context the subject of this appeal, dealing as it does with the deprivation of a basic human right such as citizenship: Art 15 of The Universal Declaration of Human Rights 1948.

2. The Reasons for Decision of the Deputy President  refer to the judgment of Barry J in Keil v Keil (1947) VLR 383. That case concerned the question of whether a petitioner for divorce who was a German citizen interned in a camp in Victoria during World War I was a resident of Victoria so that he was entitled to petition for divorce in that State on the ground of his wife’s desertion. His Honour found that the German citizen was resident in Victoria for the purposes of the Matrimonial Causes Act 1945 (Cth). He did not consider the fact that the petitioner was living in Victoria by compulsion deriving from the exigencies of war affected his position as to residency in Victoria. However, his Honour did add at 388:

   “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.” (Emphasis added)

3. Further, his Honour’s reasons indicate that he placed considerable emphasis on the context provided by the Act.  He referred to the English Court of Appeal decision in In re XY [1937] Ch 337 at 341 where Lord Wright MR observed that the word “residence” as used in the Lunacy Act 1891 (UK) must mean residence in fact.  Examination of that Act discloses that there was a particular provision which expressly contemplated that a lunatic could acquire residence and it therefore followed that the term “resident” was used in the sense that it was not necessary to demonstrate an intention to reside in a particular place.

4. The above decisions are therefore contextually different from the present circumstances.  Here the legislature was concerned with the nature of the relationship between the Australian community and the individual, which defines the ways in which citizenship may be lost or taken away.

5. In our view the statutory scheme makes it clear that, for the purposes of s 20, a person is taken to be residing outside Australia only if they do so intentionally, or voluntarily.  If we are wrong on that point, then it can at least be said that the statutory scheme and the decisions cited establish that the expression in question is capable of more than one meaning and is in the relevant sense ambiguous or obscure so as to warrant recourse to extrinsic materials.

6. In this case the most relevant extrinsic source is the Explanatory Memorandum to the clause of the Bill which became s 20.  The memorandum relevantly states:

   “Clause 20 (Loss of Citizenship by Residence Outside Australia) – In recent years many cases have come under notice overseas in which it has been evident that persons, who were naturalized in Australia, have shortly afterwards taken up residence abroad and have severed all connexion with Australia, but have not hesitated to claim the protection and assistance of the Australian Government when it was to their advantage to do so.  As these persons had retained British nationality the protection and assistance they sought could not be denied them.

   Clause 20 will have the effect of causing such persons to cease to be Australian citizens and British subjects after seven years absence, unless they indicate an intention to retain their ties with Australia, by the simple method of registering annually at a Consulate.  Persons abroad in the service of an Australian Government or firm are exempted, as are children residing abroad with parents who register or are in such services as is mentioned.  In accordance with the principle that the nationality of a married woman should no longer be dependent upon action by her husband, it will be necessary for women (if they are Australian citizens by registration or naturalization) to take independent action to register annually at a Consulate, whether or not their husbands are in the service of an Australian Government or firm.  If the woman herself is in such service, she will of course be exempted from registration.

   Clause 20 will have no effect until seven years after the new Act commences, so that no person now abroad will lose citizenship suddenly and without notice.” (Emphasis added)

7. These notes spell out the “mischief” sought to be remedied and confirm that the underlying purpose of s 20 was not directed to a situation such as that with which Mr Suleman was confronted.  The purpose of s 20 was clearly to prevent persons taking advantage of the privileges and rights attaching to Australian citizenship while having no intention of retaining any other connection with the Australian community. On the findings made by the Deputy President the present circumstances are different to those referred to in the Explanatory Memorandum.  Mr Suleman could not be said to be “such a person” who had severed all connections with Australia.

8. Two further matters should be considered when resolving the ambiguity of the expression under consideration here. The first is that deprivation of citizenship involves the loss of an important status and rights. Legislation which has this effect calls for clear and express wording. No such clear or express language appears in s 20. The second consideration is that, on accepted canons of interpretation, it is appropriate to consider the consequences of the interpretation contended for by the Minister in circumstances where more than one interpretation is available: s 15AB of the Acts Interpretation Act and Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 305 and 321. The position adopted by the Minister in this case means that Mr Suleman ceased to be an Australian citizen in circumstances where he had no intention to lose citizenship. The inference from the evidence is clearly that he intended to retain his Australian citizenship. He was prevented by circumstances beyond his control from confirming his relationship with the Australian community.

9. For these reasons in our view the correct interpretation of s 20 is that it does not apply to the circumstances of Mr Suleman because the phrase “resided outside Australia” requires an intention to remain outside Australia.  It does not apply where compliance with the section is not possible due to circumstances beyond the control of the citizen, and the citizen retains a desire or intention to remain an Australian citizen.

   CONSTITUTIONAL QUESTION

10. The appellant also, as an alternative submission, raised a constitutional question. The Attorneys-General were duly notified as required by s 78B of the Judiciary Act 1901 (Cth) but they indicated that they did not wish to appear on the hearing of the question.

11. Because the conclusion of the Court is that the Deputy President erred in her interpretation of s 20, the constitutional question does not arise.  Accordingly, we consider it is neither necessary nor appropriate to express any views on that matter.

    CONCLUSION

12. The appeal is allowed.  The decision of the AAT is set aside.  The matter is remitted to the AAT for determination in accordance with these reasons.  The respondent is to pay the appellant’s costs of this appeal.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper, Tamberlin and Kiefel.

Associate:

Dated:             15 September 2000

Counsel for the Appellant:	S J Hamlyn-Harris
Solicitor for the Appellant:	South Brisbane Immigration & Community Legal Service Inc.
Counsel for the Respondent:	J A Logan SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 2000
Date of Judgment:	15 September 2000