Opinion Number. 1342

Subject

Nationality nationality of person born in palestine whose father was naturalised in victoria: person born in a place prior to date upon which His Majesty commenced to exercise jurisdiction over British subjects in that place: whether ‘born within His Majesty’s allegiance’

Key Legislation

NATIONALITY ACT 1920 s 6(1)

Date
Client
The Secretary, Department of Home and Territories

The Secretary, Home and Territories Department, has forwarded the following memorandum for advice:

A communication has been received from the Director of Immigration, Palestine, seeking advice as to the nationality of a native of Palestine, born in 1904, whose father was naturalised in Victoria in 1894.

The son, not having resided, during infancy, with his parents in any part of His Majesty’s Dominions, cannot claim British nationality by virtue of the father’s naturalization. The question, however, arises as to whether he may be regarded as a natural-born British subject under the proviso to section 6(1) of the Nationality Act 1920–22, which reads as follows:

Provided that the child of a British subject, whether that child was born before or after the passing of this Act, shall be deemed to have been born within His Majesty’s allegiance if born in a place where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty exercises jurisdiction over British subjects.

I shall be glad to be furnished with an opinion as to whether, under the section in question, a person, who was born in a place prior to His Majesty exercising jurisdiction over British subjects in that place, may be regarded as being born within His Majesty’s allegiance or whether it should be interpreted as being applicable only to persons who are born after the acquisition by His Majesty of jurisdiction over British subjects in that place.

Section 6(1) of the Nationality Act 1920–1922 provides as follows:

6(1) The following persons shall be deemed to be natural-born British subjects, namely:

  1. Any person born within His Majesty’s dominions and allegiance; and
  2. Any person born out of His Majesty’s dominions, whose father was a British subject at the time of that person’s birth and either was born within His Majesty’s allegiance or was a person to whom a certificate of naturalization had been granted, or had become a British subject by reason of any annexation of territory, or was at the time of that person’s birth in the service of the Crown; and
  3. Any person born on board a British ship whether in foreign territorial waters or not;

Provided that the child of a British subject, whether that child was born before or after the passing of this Act, shall be deemed to have been born within His Majesty’s allegiance if born in a place where His Majesty by treaty, capitulation, grant, usage, sufferance, or other lawful means, exercises jurisdiction over British subjects.

In my opinion, a person who was born in a place prior to the date upon which His Majesty commenced to exercise jurisdiction over British subjects in that place cannot be regarded as having been born within His Majesty’s allegiance within the meaning of section 6.

[Vol. 20, p. 372]