Re Diane Christine Smith-Davidson v the Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 58; (1993) 30 ALD 871 (Extract) (26 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: DIANE CHRISTINE SMITH-DAVIDSON
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G100 of 1992
FED No. 84
Number of pages - 17
Immigration
[1993] FCA 58; (1993) 30 ALD 871 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Immigration - citizenship - grant and issue of certificate - recall of certificate before oath or affirmation of allegiance made - whether oath or affirmation may be made to acquire citizenship.

Acts Interpretation Act 1901 sub-s.33(3)

Australian Citizenship Act 1948 ss.5A, 10, 10A, 10B, 10C, 11, 13, 15, 21, 32, 33, 37, 41, 42, 48, 46, 50; sub-ss.13(1), 13(1A), 13(11), 15(2), 15(4A), 32(1), 32(3), 46(2); para.15(1)(a), 15(2)(b); sub-paras 13(1)(a)-(j), 13(4)(iv), 15(2)(a)(iv)

Migration Act 1958 sub-s.14(2); sub-para.20(1)(c)(i)

Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. [1979] FCA 21; (1979) 24 ALR 307

HEARING

PERTH, 9, 10 December 1992
26:2:1993

Counsel for the Applicant: Mr R.L. Le Miere

Solicitors for the Applicant: Malcolm J. Bateman and Co.

Counsel for the Respondent: Mr S. Bhojani

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. In respects other than the application for a writ of

prohibition the application be dismissed.
2. Each party pay its own costs to the date of this order.

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

DECISION

LEE J. The applicant ("Smith-Davidson") seeks a declaration that she is a citizen of Australia pursuant to the Australian Citizenship Act 1948 ("the Act") and a writ of mandamus to compel the respondent ("the Minister") to deliver to the City of Wanneroo a certificate of Australian citizenship granted to her under the Act. Smith-Davidson also seeks a declaration that she is a "permanent resident" under the provisions of the Migration Act 1958 and a writ of prohibition prohibiting the Minister from ordering her deportation under that Act.

2. Smith-Davidson was born Diane Christine Smith on 24 February 1949 in Georgetown, Penang in the Straits Settlement of Malaya, (now Malaysia). Her parents were of British nationality and in due course she obtained a British passport.

3. In 1967 the Smith family was given permission to migrate to Australia. Smith-Davidson's parents and two brothers migrated to Australia in October 1967. They continue to reside here and are Australian citizens. Smith-Davidson arrived in Australia as a migrant on 29 June 1968 having completed a course of study in the United Kingdom. At the time of her arrival her British passport was endorsed with an entry permit which gave her the right to reside in Australia permanently.

4. In late 1968 or early 1969 Smith-Davidson left Australia to return to Malaysia to marry Mr Morris Davidson. Mr Davidson is a citizen of Malaysia. At some time after her marriage a Malaysian passport was issued to Smith-Davidson in the name Mrs Morris Davidson. Smith-Davidson travelled to Australia after 1969 on a number of occasions to visit the members of her family residing in Perth. With one exception Smith-Davidson entered and departed from Australia on her Malaysian passport. In 1971 a son, Felix, was born. In January 1988 Felix was enrolled as a student at Wesley College in Perth. He resided at the college as a boarder until July 1989. He completed his secondary education at the end of 1989, and since 1990 has been enrolled at a Perth University. From July 1989 Smith-Davidson maintained a home in Perth for herself and her son. In late 1991 Smith-Davidson commenced the construction of a new residence in Perth. After July 1989 her absences from Australia were short and intermittent.

5. In October 1991 Felix applied to the Minister's department for permission to reside in Australia permanently. In the application Felix recorded that his mother's name was "Mrs Diane Smith Davidson" and stated that her country of residence was Australia. In additional particulars presented with the application Felix stated that his mother's surname, or family name, was "Davidson", given names "Diane Christine", and that her previous name had been "Diane Christine Smith". His mother completed the application as supporting nominator, stating that her family name was "Smith Davidson", given names "Diane Christine".

6. The use of the name "Smith-Davidson" apparently began after that application.

7. In November 1981 Smith-Davidson had applied for a "return-endorsement" to be endorsed on a renewed British passport that had been issued to her in the name Diane Christine Smith. That endorsement was entered on 25 November 1981. The application contained a statement that the date on which the applicant had last arrived in Australia was 29 June 1968. Smith-Davidson denied that she had written that statement in the form of application nor instructed anyone to do so on her behalf.

8. In October 1989, in consequence of amendments to the Migration Act, Smith-Davidson sought and obtained the endorsement of a Resident Return Visa in her British passport.

9. On 9 April 1992 Smith-Davidson applied for a grant of Australian citizenship. On 12 June 1992 a decision was made to approve the application. A certificate of Australian citizenship was granted and at Smith-Davidson's request it was forwarded to the offices of the City of Wanneroo as the place at which Smith-Davidson would make an affirmation of allegiance.

10. On 30 June 1992 an officer of the Minister's department considered that Smith-Davidson had not been entitled to the grant of a certificate of citizenship. That belief was based upon a conclusion that Smith-Davidson was not a "permanent resident" at material times because she was a person who had made a misleading statement under sub-para.20(1)(c)(i) of the Migration Act and, therefore, was an illegal entrant under sub-s.14(2) of that Act. The officer asked the City of Wanneroo to return the certificate. The certificate was returned to the department before Smith-Davidson made an affirmation of allegiance.

11. On 7 August 1992 the Minister gave notice to Smith-Davidson that consideration was being given to the exercise of the power under the Migration Act to order that she be deported from Australia.

12. Under the Act Australian citizenship may be obtained by birth (s.10), adoption (s.10A), descent (ss.10B, 10C, 11), incorporation of a territory (s.33), or by grant (s.13).

13. Pursuant to s.13 a grant of citizenship is in the discretion of the Minister and may be made to a person who satisfies the Minister of matters specified in paras.13(1)(a)-(j) of the Act. The provisions of sub-s.13(1) do not impose a direct limitation on the Minister's discretion in the event that he is not satisfied in respect of specified particulars. (cf. sub-s.13(11)) The terms of sub-s.13(1A) indicate that the Minister may have a discretion to grant a certificate of Australian citizenship even if the Minister is not satisfied on the matter of permanent residence as that term is defined in s.5A of the Act. (See also sub-para.13(4)(iv).)

14. Under s.37 of the Act the Minister may delegate all or part of his powers under the Act. By s.46 of the Act a certificate of Australian citizenship granted under the Act may be issued by the Minister or by a person authorized in writing by the Minister to issue such a certificate. The grant of a certificate under s.13 may be made by a person other than the Minister pursuant to a delegation under s.37. Perhaps the issue of a certificate pursuant to s.46 would require separate written authority from the Minister. By sub-s.46(2) a document bearing the printed, or stamped, signature of the Minister and purporting to be issued by the Minister or a person by authority of the Minister shall be deemed to be a certificate of Australian citizenship granted under the Act.

15. On or about the 11 June 1992 the certificate of Australian citizenship of Diane Christine Smith bearing a stamped signature of the Minister and a notation that it had been issued by the authority of the Minister was forwarded to the City of Wanneroo. Pursuant to sub-s.42(2) of the Act that certificate was a certificate of Australian citizenship granted under the Act.

16. Therefore, the provisions of s.15 of the Act applied to the certificate. Section 15 reads as follows:

"15(1) A person to whom a certificate of Australian
citizenship has been granted under this Division
shall be an Australian citizen -
(a) in the case of a person -
(i) who, at any time after lodging
an application for a
certificate of Australian
citizenship (including a time
after the grant of the
certificate), takes an oath of
allegiance or makes an
affirmation of allegiance in
the manner provided by this
section and in accordance with
the appropriate form set out
in Schedule 2; and
(ii) to whom paragraph (b) does not
apply -
on and after the day on which the
certificate is granted or on which the
person takes such an oath or makes such an
affirmation, whichever last occurs; or
(b) in the case of a person -
(i) who has not attained the age
of 16 years; or
(ii) to whom sub-section 13(2)
applies -
on and after the day on which the
certificate is granted.
(2) The oath or affirmation of allegiance shall -
(a) be taken or made before any of the
following persons:
(i) the Minister;
(ii) a Judge of a federal
court who is an
Australian citizen;
(iii) a Judge or Magistrate
holding office under a
law of a State or
Territory, being a
Judge or Magistrate who
is an Australian citizen;
(iv) a person, or a person
included in a class of
persons, approved in
writing by the Minister
for the purposes of
this sub-paragraph,
being a person who is
an Australian citizen; and
(b) if the Minister has made arrangements
under section 41 for it to be taken or
made in public, be taken or made in
accordance with those arrangements unless
the Minister otherwise permits in writing.
(3) A person who has been granted a certificate
of Australian citizenship under sub-section 13(9)
by virtue of being the spouse of a person referred
to in sub-paragraph 13(9)(d)(ii) shall not take the
oath of allegiance, or make the affirmation of
allegiance, before the last-mentioned person has
taken such an oath or made such an affirmation.
(4) A person whose name is, under sub-section
13(10), included in a certificate of Australian
citizenship shall, if not already an Australian
citizen, be an Australian citizen as from the date
upon which his name is so included or the date upon
which the grantee of the certificate of Australian
citizenship becomes an Australian citizen,
whichever is the later.
(4A) The validity of an acquisition of
Australian citizenship is not affected by reason
only that the oath of allegiance was not taken, or
the affirmation of allegiance was not made, before
an Australian citizen.
(5) A reference in sub-section (1) to a
person to whom a certificate of
Australian citizenship has been granted
under this Division shall be read as
including a reference to a person to
whom a certificate of Australian
citizenship has been granted under
section 15 of the Citizenship Act 1948-1969
or of that Act as amended but who
was not an Australian citizen
immediately before the commencement of
this section."

17. It may be noted that pursuant to para.15(1)(a) an oath or affirmation of allegiance may be taken or made before a certificate of citizenship has been granted. Furthermore, the acqusition of citizenship is not made dependent upon the issue of the certificate. Paragraph 15(2)(b) requires the oath or affirmation to be taken or made in public if the Minister has made such arrangements under s.41 of the Act.

18. Section 41 reads as follows:

"The Minister may make arrangements for the oath or
affirmation of allegiance referred to in section 15
to be taken or made in public and to be accompanied
by proceedings designed to impress upon applicants
the responsibilities and privileges of Australian
citizenship."

19. The Court was advised that no regulations have been promulgated or administrative instructions issued as "arrangements" under s.41.

20. As noted earlier, Smith-Davidson, in response to an enquiry by the Minister's department, nominated the City of Wanneroo as the place where she wished to make her affirmation of allegiance. The certificate of citizenship was issued to the City of Wanneroo accordingly. Apparently the Mayor of a municipality is a member of the class of persons approved in writing by the Minister pursuant to sub-para.15(2)(a)(iv) of the Act as a person before whom an oath or affirmation may be taken or made.

21. However, in the absence of "arrangements" made under s.41 of the Act there would be no reason why the applicant could not complete her affirmation of allegiance before any competent person and thereby acquire citizenship.

22. In s.41 of the Act the reference to "applicants" suggests that the arrangements are intended to be of general application rather than particular arrangements for an individual applicant. Furthermore, the purpose of such arrangements is said to be to impress upon an applicant for citizenship the seriousness of the oath or affirmation. In her application for the grant of a certificate of citizenship it was recorded by the interviewing officer that the applicant was aware of the responsibilities and privileges of Australian citizenship as required by the Act.

23. Even if it were contended that the Minister had made arrangements for the taking of the oath or the making of the affirmation by the applicant as required by s.41, it would be difficult to argue that failure to comply with such arrangements would render invalid an oath or affirmation taken or made before a competent person and prevent citizenship being acquired. Sub-section 15(4A) provides that the validity of acquisition of Australian citizenship is not affected by reason only that the oath or affirmation was not made before an Australian citizen. Pursuant to sub-s.15(2) the oath or affirmation may be taken or made only before an Australian citizen. It would seem to follow that an oath or affirmation taken or made before a competent person by a person who fully understood the privileges and responsibilities of citizenship would be sufficient to complete the acquisition of Australian citizenship under the Act.

24. Until the commencement of the hearing the Minister maintained that the certificate had been "cancelled" after it had been recalled from the City of Wanneroo. An officer of the Minister's department had written the word "cancelled" upon the certificate. But at the hearing counsel for the Minister withdrew that submission, and conceded that the grant of the certificate had not been revoked. Counsel advised that the Minister was considering whether to exercise a power to revoke the certificate, such a power to be implied by the terms of sub-s.33(3) of the Acts Interpretation Act 1901 or from the terms of the Act itself.

25. It is unnecessary in these proceedings to decide whether the Act contains such an implied power. It may be noted however, that unless the Act contained express words to the contrary the grant of a certificate of citizenship completed by the appropriate oath or affirmation would not be amenable to revocation. Such a grant is not a mere licence or contractual arrangement but is a grant of status without any reservation of a right of revocation exercisable at will.

26. By contrast, a purported grant of a certificate contrary to the prohibition contained in sub-s.13(11), which limits the power of grant provided to the Minister, may be regarded as void ab initio rather than being voidable or subject to an implied power of revocation.

27. Even if it were concluded that the grant of a certificate was the grant of an instrument for the purposes of sub-s.33(3) of the Acts Interpretation Act 1901, and as to that I express no opinion, (see Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. [1979] FCA 21; (1979) 24 ALR 307), the provisions of that sub-section would have to be read in the context of the provisions of the Act referred to above.

28. In appropriate circumstances it may be said that continuation of the grant of a certificate under which acquisition of citizenship remains inchoate could be incompatible with fundamental provisions of the Act and that a power to revoke the grant may be implied. (See Collector of Customs v. Lawlor at p 328.) For example, an act of fraud which may have the effect of subverting a clear purpose of the Act may support an implied power to revoke a grant uncompleted by an oath or affirmation.

29. But on the other hand it would have been a simple matter for the Act to make express provision in that regard. In sub-s.32(3) a certificate of Australian citizenship obtained pursuant to sub-s.32(1) of the Act is conclusive evidence that the person was an Australian citizen on the date of the certificate unless it is proved that the certificate was obtained by means of fraud, a false representation, or by the concealment of some material fact. The section does not render the certificate void. However, it should be borne in mind that under s.32 of the Act the grant of a certificate of citizenship is only an aid to proof of citizenship and not the foundation for acquiring citizenship in the manner provided for by ss.13 and 15 of the Act.

30. By s.50 of the Act it is an offence for a person for the purpose of the Act to make a statement that is, to the knowledge of that person, false or misleading in a material particular or conceal, or cause or permit to be concealed, a material circumstance. The fact that whilst such a fraudulent act is made punishable as an offence, a certificate granted under the Act in consequence of that act is not invalid suggests that the legislature did not intend that a power to revoke the certificate be implied from the terms of the Act. The provisions of s.21 of the Act confirm that view in respect of a certificate under which citizenship has been acquired. Pursuant to s.21 a person who has obtained Australian citizenship by virtue of a certificate granted to that person may be deprived of that citizenship in the Minister's discretion if that person has been convicted of an offence against s.50 of the Act in relation to the application for the certificate and the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen. If the Minister makes such an order the certificate must be delivered up for cancellation by the Minister pursuant to ss.42 and 48 of the Act.

31. When this application came on for hearing Smith-Davidson had not made the affirmation required by the Act to acquire citizenship and apparently believed that such an affirmation could not be made unless the certificate was returned to the City of Wanneroo.

32. It cannot be said that in failing to deliver the certificate to the City of Wanneroo the Minister has failed to carry out a duty imposed by the Act. Therefore, there is nothing to which an order for mandamus may be attached. In the circumstances of this case it is unnecessary for the certificate now to be delivered to Mrs Smith-Davidson or to any other person before the affirmation may be made and citizenship acquired. If the Minister failed to deliver up the certificate for insertion of the date of acquisition of citizenship after the affirmation had been made, an order could be made directing the Minister to deliver up the certificate for that purpose. On the other hand, if before the affirmation were made the Minister considered that he had the power to revoke the certificate he had granted and purported to do so, it would be inappropriate for the Court to order that the certificate be delivered up until the validity of the purported revocation had been determined.

33. If Smith-Davidson acquires Australian citizenship by completion of an affirmation, the question whether she was a permanent resident prior to the acquisition of citizenship becomes unnecessary to answer and the declaration she has sought in that regard should not be made. Furthermore, if citizenship is so acquired and a contravention of s.50 of the Act is alleged, preparatory to action under s.21 to deprive Smith-Davidson of citizenship, the issue in that prosecution is likely to be the same issue that is raised in the question whether Smith-Davidson was a permanent resident at relevant times. It would be inappropriate to have on foot a declaration that is unnecessary for the disposal of this proceeding tending to pre-determine a central issue that may be required to be determined in a proceeding relating to an alleged contravention of the Act.

34. It is clear that before any action to deport Smith-Davidson can be considered by the Minister the question whether Smith-Davidson has acquired citizenship, or whether the grant of the certificate of citizenship was revoked before citizenship was acquired, must be determined. If citizenship has been acquired but not recognized, an order prohibiting any action to deport Smith-Davidson may be considered, but that situation has not been reached yet in these proceedings.

35. Accordingly, no order should be made in the form of a declaration that the applicant has the status of a permanent resident under the Act. Nor should an order of mandamus be directed to the Minister compelling the Minister to return the certificate of citizenship to the City of Wanneroo. At this time no declaration can be made that the applicant is a citizen of Australia pursuant to the Act.

36. With regard to the request for a writ of prohibition, the application may be re-listed in that respect if it becomes necessary to do so subject to the filing of an appropriate affidavit in support.

37. In all other respects the application will be dismissed. Having regard to the course of the litigation, the appropriate order in respect of costs would be that each party bear its own costs.