Levitt and Repatriation Commission - [2002] AATA 900

DECISION AND REASONS FOR DECISION [2002] AATA 900

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/117

VETERANS' APPEALS   DIVISION   )
           Re      SONIA ALICE LEVITT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms Narelle Bell, Member

Date8 October 2002
PlaceSydney

Decision The decision under review is affirmed.

[SGD] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – compensation to civilian for internment by Japanese – requirement of domicile in Australia immediately before commencement of the internment – intention to reside in Australia – decision under review affirmed.

Compensation (Japanese Internment) Act 2001 – sections 4(2); 9
Veterans' Entitlements Act 1986 – section 119

Re Wong and Secretary, Department of Social Security (1986) 9 ALD 193
Henry v Boehm (1973) 128 CLR 482
Repatriation Commission v Keeley (2000) 98 FCR 108
McDonald v Director General of Social Security (1984) 1 FCR 354
Re SQQQ and SRRRR and Repatriation Commission [2002] AATA 510
Re Sharkey and Repatriation Commission (1988) 15 ALD 782

REASONS FOR DECISION

Ms Narelle Bell, Member

This is an application by Ms Sonia Levitt ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 10 January 2002 to refuse the Applicant's claim for payment of $25,000.00 under the Compensation (Japanese Internment) Act 2001 ("the Act"). The Applicant was represented by Mr Richard Davis of the Returned & Services League and the Respondent was represented by Ms Rhonda Henderson of Counsel. The Tribunal heard the oral evidence of the Applicant and had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") and a written statement with attachments by the Applicant.
BACKGROUND
It is not in dispute that the Applicant was born on 13 December 1940 in Malang, Java. Her mother, Alice Lonnquist, was born in Richmond, Victoria on 18 January 1908 and met the Applicant's father through a mutual relation. The Applicant's father, Thorlai Ishoy, was born in Copenhagen, Denmark. He travelled to Indonesia in 1928 and worked as a planter on rubber and coffee plantations and became a plantation manager for an English company, J.A. Wattie & Co., from 1934.
The Applicant's parents were married in Perth, Western Australia on 5 May 1938 and they returned to Java soon after the wedding.
The Applicant's father continued his work on the rubber plantation until June 1942 when he was made a prisoner of war. The Applicant and her mother were interned by the Japanese Army soon afterwards. The family reunited at the close of the war and travelled together to Australia on the troopship Circassia. The family resided in Melbourne for the next few years and later moved to Queensland where the Applicant's father lived until his death in 1991. The Applicant's father became a naturalised Australian in 1961.
ISSUES AND LEGISLATION
Section 4(2) of the Act provides for the eligibility of a civilian claiming compensation in respect of internment:
"Section 4 Eligibility for compensation payment
…
Civilian (in own right)
(2)       A person is eligible for a compensation payment in the person's own right as a civilian if the following conditions are satisfied:
          (a)       the person was alive at the beginning of 1 January 2001;
(b)the person was interned by Japanese military forces at any time during the designated war period;
(c)       the person was domiciled in Australia immediately before the commencement of that internment."
The parties agree that the issue for consideration by the Tribunal in this application is whether the Applicant meets the requirement in section 4(2)(c) of the Act that she was domiciled in Australia immediately before the commencement of her internment.
EVIDENCE
The Applicant's evidence was that her earliest memories are of being interned with her mother who told her about her "home" and spoke of Melbourne. She said that her mother drew picture books illustrating her house and family members back in Melbourne.
The Applicant described her mother as a very strong-minded and strong willed woman who maintained her Australian citizenship upon marriage instead of adopting her husband's Danish citizenship. However, she also described her mother and father as co-operative as a couple and as coming to decisions together. The Applicant said that her father talked about his homeland only in order to tell her of his heritage but not as if he wished to return to it. She said he kept in contact with his parents and brothers and sisters but actually saw his Danish relatives only on a couple of occasions.
The Applicant said that when she and her parents returned to Australia in 1945 they lived with her maternal grandparents in Melbourne for about three years given that they had lost everything in Indonesia. After that time the Applicant and her parents moved to Queensland.
The Applicant confirmed that her father had worked as Plantation Manager for the English company J. A. Wattie & Co. based in Surabaya. She said that he had been due some long service leave in 1941 but that his leave had been cancelled. She ventured the opinion that his long service leave would have been substantial. She said that in early 1942 her father had joined the demolition corps of the Dutch Army, his task being to destroy all machinery and equipment that may be of use to the occupying Japanese forces.
The Applicant said that, apart from personal effects, her father had no property in Indonesia, Denmark or Australia. In answer to a question from the Tribunal she said that she did not know how long her father had spent in Australia in 1938 when he married her mother. She confirmed that she has no memory of her mother or her father before her internment. However, the Applicant said that her parents' plans for her education centred on an Australian education and that she remembers her mother telling her that she would not have married her father unless he agreed to her remaining Australian and he became an Australian citizen. She said that it was her mother's firm intention to return to Australia once her father ceased to work in Indonesia. She said that she never learnt to speak Danish and English was the only language she was taught.
SUBMISSIONS
Mr Davis, for the Applicant, referred the Tribunal to a number of paragraphs in Halsbury's Laws of England, (Butterworths), to the decision of the Tribunal in Re Wong and Secretary, Department of Social Security (1986) 9 ALD 193 and to the decisions in Henry v Boehm (1973) 128 CLR 482 and Repatriation Commission v Keeley (2000) 82 FCR 108. Drawing on these authorities, Mr Davis submitted that the Applicant's father had acquired Australia as his domicile. He submitted that as the purpose of the Applicant's father in going to Australia in 1938 was to marry, this shows an intention to return and settle in Australia. He also submitted that the return of the Applicant and her parents to Australia after their release in 1945 shows a firm intention, prior to their internment, to return to Australia. Mr Davis also referred to the Applicant's mother's decision to maintain her Australian nationality and the reference to her in a newspaper report in October 1945 as a "Melbourne woman".
Mr Davis suggested to the Tribunal, but did not point to any evidence establishing same, that the Applicant's father had a contract of employment at the rubber plantation which compelled him to return to Indonesia following his marriage to the Applicant's mother in 1938. Mr Davis also suggested, by reference to United Kingdom legislation governing the process of registration for marriage, that he had been in Melbourne for a minimum of three weeks.
Mr Davis submitted to the Tribunal that the provisions of section 119 of the Veterans' Entitlements Act 1986, which apply by virtue of the operation of section 9 of the Act, allow the Tribunal to take into account the difficulties of providing evidence to support a claim under the Act.
Finally, Mr Davis submitted that the Tribunal cannot be reasonably satisfied that the Applicant did not have Australia as her domicile immediately prior to her internment.
Ms Henderson, for the Respondent, also referred the Tribunal to Halsbury's Laws of England and submitted that upon her marriage to the Applicant's father in 1938 the Applicant's mother acquired her husband's domicile, that when the Applicant was born in December 1940 her domicile of origin was the domicile of her father and that there is no material before the Tribunal upon which it could conclude that the Applicant's father acquired an Australian domicile of choice prior to the commencement of the Applicant's internment in the second half of 1942.
In relation to the evidence before the Tribunal, Ms Henderson submitted that there is evidence only of the Applicant's father having gone to Perth to marry the Applicant's mother and there is no evidence of the Applicant's father having come to Australia before the marriage. Nor is there any evidence of the Applicant's father having been required to visit Perth for a minimum period or of any intention on the part of the Applicant's father to remain indefinitely in Australia. Indeed, in Ms Henderson's submission, it was the Applicant's evidence that her parents returned to Java soon after their marriage. Ms Henderson submitted that it was not the Applicant's evidence that her father had a contract with the plantation company and there is nothing before the Tribunal to establish this, nor was it the Applicant's evidence that her parents intended to return to Australia during the period of her father's long service leave. Her evidence was simply that his long service leave had been refused.
Ms Henderson submitted that the fact that the Applicant and her parents went to Australia after the war indicates nothing more than that the Red Cross made available the means to return to Australia. She submitted that life had changed so much following the fall of Singapore that going to Australia provided a refuge and nothing more can be inferred from that.
Ms Henderson referred the Tribunal to the decision of McDonald v Director General of Social Security (1984) 1 FCR 354 as authority for the proposition that proceedings before the Tribunal are administrative proceedings and so no party bears a particular burden of proof. She submitted that the standard of proof required in Tribunal proceedings is that of reasonable satisfaction.
In relation to the operation of section 119 of the Veterans' Entitlements Act 1986, Ms Henderson noted that in this case there is no indication that official documents had been lost nor is it a case of witnesses' memories having faded.
CONSIDERATION
There is no dispute that the issue for the Tribunal to consider in this application is whether the Applicant was domiciled in Australia immediately before the commencement of her internment. In the decision in Re SQQQ and SRRRR and Repatriation Commission [2002] AATA 510, Deputy President Handley summarised the relevant law of domicile in Australia:
"The law of domicile in Australia is derived from the English Common Law with statutory modifications between 1978 and 1982 in accordance with the adoption of a uniform State and federal scheme: Michael Tilbury et al, Conflict of Laws in Australia (Melbourne: Oxford University Press 2002) at 402. At Common Law, every person must have a domicile but no one can have more than one domicile at the same time. At birth, children acquire the domicile of one of their parents: a legitimate child acquires the domicile of his or her father and an illegitimate child acquires the domicile of his or her mother. A person may change their domicile by adopting a domicile of choice. A domicile of choice is acquired if a person resides or has resided in a country and intends to remain there indefinitely. A person may acquire a domicile of choice notwithstanding a continuing emotional attachment to another country. A person may also abandon an earlier domicile of choice if he or she ceases to have the intention to remain there indefinitely. Unless the person has formed an intention to live indefinitely in a new (third) domicile at the time of the abandonment, the domicile of origin revives. (Generally, see Halsbury's Laws of England (supra) para 680 ff). In the present case, since the relevant date is 1942, the old English Common Law rules apply since, at that time, there had been no relevant statutory modification."
There is no dispute that the Applicant is the legitimate daughter of Alice Lonnquist, born in Richmond, Victoria and Thorlai Ishoy, born in Copenhagen, Denmark. Therefore, she acquired, at birth, the domicile of her father. The matter then turns on whether the Applicant's father was domiciled in Australia, that is, whether he had resided in Australia and intended to reside there in the future.
There is no evidence that the Applicant's father was in Australia prior to 1938 when he married the Applicant's mother in Perth. Mr Davis urged on the Tribunal a finding that the Applicant's father was in Australia for at least three weeks in 1938 because of the operation of certain English legislation requiring particular steps to be taken in order to register for marriage. There is no evidence of the period of his stay in Australia other than the Applicant's evidence that her parents returned to Java "soon after the wedding". On this basis the Tribunal can only find that the Applicant's father was in Australia for a brief period in 1938. However, "It is immaterial that the residence is of brief duration, provided that it is accompanied by the required state of mind."(Halsbury's Laws of England, Volume 8(1), paragraph 687, 4th ed (Butterworths)).
As to the Applicant's father's intention, the Tribunal notes that the Applicant's father had resided in Indonesia since 1928 and following his marriage returned and remained there until the fall of Singapore and thereafter as a prisoner of war. There is no evidence of any steps taken by the Applicant's father to arrange a return to Australia or to reside there. The Applicant's evidence was that he owned no property in Australia.
The Applicant gave evidence of what she understood to be her mother's intention to return to Australia and Mr Davis submitted that this supports a conclusion that the Applicant's father had a similar intention. However, in the face of his continued residence in Indonesia, for four years after his marriage, and in the absence of any other evidence of an intention on the part of the Applicant's father to return to Australia and remain there indefinitely, the Tribunal cannot conclude that this was his intention. Mr Davis' submission that the Applicant's father was bound by a contract of employment with the plantation company is without evidentiary support. Similarly his submission that he had intended to return to Australia during a period of long service leave in 1941 is not supported by the evidence which was simply that long service leave which was due to him in 1941 was cancelled. The fact of the Applicant's father's return to Australia in 1945 and his remaining there is not, of itself and in the absence of any other indicator, evidence of an intention, in 1942, to do so.
The lack of probative evidence of an intention on the part of the Applicant's father to return to and remain indefinitely in Australia is not cured by section 119 of the Veterans' Entitlements Act 1986. In Re Sharkey and Repatriation Commission (1988) 15 ALD 782, the Tribunal said at 783:
"… [section 119(1)(h)] does not mean that the Tribunal may assume the existence of facts as to which there is no evidence, simply because of the difficulties in proving those facts. The Tribunal must consider all the evidence before it and then reach a conclusion as to whether the facts necessary to establish the claim are satisfactorily established, bearing in mind the ameliorative effects of s 119 and s 120 of the Act."
Therefore, the Tribunal concludes that, immediately prior to the Applicant's internment, the Applicant's father was not domiciled in Australia. It follows that, immediately before the commencement of the Applicant's internment, the Applicant was not domiciled in Australia and so she does not satisfy the requirement in section 4(2)(c) of the Act. Consequently she is not eligible to receive compensation under the Act.
DECISION
The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  28 August 2002
Date of Decision  8 October 2002
Advocate for the Applicant      Mr R Davis
Counsel for the Respondent    Ms R Henderson