Pollack and Minister for Immigration and Citizenship

[2008] AATA 620

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 620

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5642

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAIE PEARL POLLACK

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date16 July 2008

PlaceMelbourne

Decision The decision under review is set aside and the case is remitted to the respondent with a direction that the applicant became a citizen under s 25(1)(d) of the Nationality and Citizenship Act 1948 and is entitled thereby to be considered for readmission as an Australian citizen under the provisions of s 29(3)(a)(i) of the Australian Citizenship Act 2007.

..............................................

Deputy President

CATCHWORDS

CITIZENSHIP – whether applicant was an Australian citizen – whether applicant should be readmitted to Australian citizenship – whether applicant still resided in Australia while living in another country – intention to reside – whether applicant left Australia permanently – application set aside and remitted

Administrative Appeals Tribunal Act 1975 s 37

Australian Citizenship Act 2007, ss 29(3)(a)(i)

Nationality and Citizenship Act 1948, ss 5(3)(e) and 25(1)(d)

Norman v Norman (No 3) (1969) 16 FLR 231

Street v Queensland Bar Association (1989)168 CLR 461

REASONS FOR DECISION

16 July 2008 Mr G L McDonald, Deputy President

The Application

1.      In this application Mrs Raie Pearl Pollack is applying pursuant to s 29(3)(a)(i) of the Australian Citizenship Act 2007 (the Act) to be readmitted to Australian citizenship.  To be readmitted the applicant must first establish she once held Australian citizenship.

The Hearing

2. The Tribunal had before it the documents filed for purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975.  The applicant gave oral evidence and submitted two exhibits.  The respondent did not call any witnesses.

The Facts

3.      The Tribunal is satisfied as to the following facts:

4.      The applicant was born in London on 4 May 1923.  The applicant’s mother was a citizen of the United Kingdom.  In 1925 the applicant moved to Australia with her family.

5.      At the time she arrived in Australia she had five uncles and one aunt on her mother’s side who lived in Melbourne.

6.      In 1927 her father and mother separated and her father returned to the United Kingdom.

7.      On 27 September 1935 the marriage between her father and mother was dissolved.

8.      On 21 November 1935 her mother married Mr Maurice Aarons in Melbourne.  By virtue of the provisions of the Nationality and Citizenship Act 1948 (the former Act) the applicant’s step-father (Mr Aarons) became an Australian citizen on 26 January 1949 (the day the former Act came into force).

9.      After leaving school at the age of 15 years the applicant commenced working in Melbourne.

10.     In 1942 the applicant met her future husband who was an army surgeon in transit in Australia on his way to Papua New Guinea.  He was and remained a citizen of the United States of America (America).  They decided to marry.

11.     The applicant left Australia and arrived in America on 14 November 1946.  The applicant married her husband two days later.

12.     The applicant’s evidence was that her husband had to complete two years further medical training to qualify as an orthopaedic surgeon.  During this period the applicant was uncertain whether they would return to live in Australia.  Eventually it was decided that they would remain in America.

13.     The applicant returned to Australia for three months from 6 November 1949.

14.     On 2 January 1951 the applicant became an American citizen.

15.     The applicant’s husband died in August 2002.

16.     The applicant has extended family in Australia including her only sibling, a sister, who is now aged 83 years.

17.     The applicant wants to return to live in Australia.

The Issue

18. The issue for the Tribunal to determine is whether or not the applicant qualified as an Australian citizen by virtue of the provisions of the former Act. Mr Hurley who appeared for the applicant made several submissions, any one of which he claimed led to the applicant becoming an Australian citizen under Part iv of the former Act. In view of the decision reached by the Tribunal it is only necessary to consider s 25(1)(d) of the former Act which relevantly is as follows:

25(1)   A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if –

…

(d)he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years.

19.     The term ‘ordinarily resident’ is defined in s 5(3)(e) of the former Act as follows:

5(3)     For the purposes of this Act –

…

(e)      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.

20.     The noun ‘resident’ will ordinarily refer to a place where a person permanently resides.[1]  Permanency can be difficult to determine.  Often it will depend on the surrounding circumstances.  In this case the difficulty arises in part because the events being considered occurred almost 60 years ago.  There is a danger of approaching a consideration of the facts from the position of hindsight, rather than considering the events in the context of the time when they occurred. 

[1] Street v Queensland Bar Association (1989)168 CLR 461 at 586 per McHugh J.

Tribunal Consideration

21.     Prior to the introduction of the former Act there was no Federal legislation which addressed Australian citizenship.  The former Act made provision for a number of people to become Australian citizens by force of the provision contained in the former Act.

22.     The Tribunal accepts that the applicant would, had she remained in Australia until 26 January 1949, have become an Australian citizen by virtue of the provisions of the former Act.  There is no evidence which establishes she did not regard herself as being an Australian resident up until the time she left Australia for America.  There is no evidence which suggests that upon leaving for America in 1946 that she intended to leave permanently, only that she left to get married in America.  The applicant decided at some time between November 1946 and 1951 to become an American citizen.  There are two aspects which determine a change in a person’s residency.  The first is that the person must have left the country in which he/she was residing.  The second is that the person must have formed a settled intention not to maintain his/her former residency, not necessarily on a permanent basis, but that he/she must have decided to live in a new place as his/her home.  In the facts of this case the first point is determined by the applicant leaving Australia in October 1946 or at the latest on her arrival in America on 14 November 1946.  The question then becomes when in the period between 1946 and 1951 did the applicant decide that America was to be her home?

23.     Like many such decisions there is probably no exact date and certainly not one which the applicant identified when giving her evidence.  This is hardly strange given that more than 60 years has since passed.  More likely than not it was a decision reached over a period of time.  There is no justification to determine that the applicant should be taken to have reached that decision by virtue of the fact of her marriage in America on 16 November 1946.  Nor is the fact that she remained in America in the period immediately after her marriage determinative.

24.     The applicant gave evidence that her husband returned to America in order to undertake further study to qualify as an orthopaedic surgeon.  That course extended for a two year period.  The applicant stated that after marrying she and her husband went first to New York.  For his training they moved to Massachusetts and returned to Brooklyn.  Then they moved to Long Island where they settled for the next 25 years.

25.     The applicant’s first child was born in May 1949.  On the evidence this must have been after the applicant and her husband returned from Massachusetts to Brooklyn to finish his training.  It was the applicant’s evidence that in September 1949 she attended at the Australian Consulate in New York in order to have her married name entered onto her Australian issued passport.  In November 1949 the applicant returned to Australia with her first born child.  There is no suggestion that she and the child returned with the intention of living permanently in Australia.  It is fair to conclude and the Tribunal does conclude that that visit was undertaken in order to introduce her new child to the Australian arm of her family.  The visit demonstrates a continuing connection to Australia. 

26.     It seems reasonable to conclude and the Tribunal does conclude that it was not until after the applicant’s return to New York, by which time her husband had presumably completed his specialty study, that she and her husband determined to live at Long Island and that her husband would commence practising there.  It is at this time that it becomes more obvious that the applicant (and her husband) intended to remain permanently living in America.  At the earliest this would have been March or April 1950.

27.     The former Act came into operation on 26 January 1949.  It is reasonably open to determine, and the Tribunal does determine, that on that date the evidence concerning where the applicant regarded as her place of residence was then, at best, uncertain.  That being the case she could not have said to have decided to abandon Australia as the country in which she should be regarded as having her permanent abode in favour of living in America.  During the period of uncertainty the preferable decision would be to regard the applicant as being in America for a ‘temporary purpose’[2] while she was waiting for her husband to finish his further medical training.

[2] Norman v Norman (No 3) (1969) 16 FLR 231 at 236 per Fox J.

28.     The respondent stated that the applicant had never taken out Australian citizenship and was a British citizen when she left for America in 1949.  It was submitted that because she was not an Australian citizen in 1951 there was no need for her to forfeit her Australian citizenship when taking up American citizenship (that is, it is not possible to forfeit that which has never been granted).  In the opinion of the Tribunal this is a non sequitur.  Her citizenship occurred by virtue of the passing of the former Act, provided she fulfilled the requirements of that Act.  She, like all others who qualified, did not receive any statement of her citizenship.  Her status was, and is, a matter to be determined on the facts and the facts support her as not relinquishing her status as an Australian citizen until after the former Act came into operation.

29. That being the case the applicant should be characterised as being ordinarily resident in Australia as at 26 January 1949. She had been so resident since her arrival in Australia in 1925. She therefore qualified as an Australian citizen under s 25(1)(d) of the former Act and has as the result is able to claim under s 29(3)(a)(i) of the Act to be readmitted as an Australian citizen.

Decision Of The Tribunal

30. The decision under review is set aside and the case is remitted to the respondent with a direction that the applicant became a citizen under s 25(1)(d) of the former Act and is entitled thereby to be considered for readmission as an Australian citizen under the provisions of s 29(3)(a)(i) of the Act.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         .....................................................................................

Grace Horzitski  Associate

Date/s of Hearing  6 June 2008
Date of Decision  16 July 2008
Counsel for the Applicant         Mr T Hurley
For the Applicant   Mr H. Meltzer

Solicitor for the Respondent     Mr D Brown

Australian Government Solicitor