Opinion Number. 1389


effect on qualifying period of residence of absence from australia for health reasons

Key Legislation

Nationality Act 1920

The Secretary, Home and Territories Department

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

An application for naturalization has been received from a person who arrived in Australia on the 15th November, 1920. He resided here continuously until the 2nd July, 1925, when he left for a trip abroad for the purpose of accompanying his wife, who was in ill-health and was ordered to take a long sea voyage. He returned to Australia on the 20th January last.

Will you kindly furnish me with early advice as to whether the above absence would break the continuity of his residence in the Commonwealth for the purpose of the Nationality Act, and thus require him to complete 12 months’ actual residence in Australia immediately prior to the date of applying for naturalization.

The material facts in connection with the applicant’s absence are set out in the following letter from the applicant’s solicitors:

In reply to yours of 21st April A. was married to B. a daughter of the late C. and was brought out to the Commonwealth by him. Up to the latter’s death A. was employed by his father-in-law in the business of hotelkeeper, carried on by him, and his wife lived with her father. Upon the death of C. his widow and Mrs. A. shared his Estate equally and the hotel was then carried on by his widow also assisted by A. and his wife until three months prior to his departure to England, when the hotel was sold. Mrs. A. received £3,000 as her portion of the purchase money for the hotel. After the sale Mrs C. and Mrs. A. furnished a flat in Coogee but owing to Mrs. A.’s illness she was advised by her doctor to take a long sea voyage, and accordingly she and her husband and Mrs C. left for England storing their furniture, and on their return returned to the flat they had previously occupied. The only reason for A.’s visit was his wife’s illness.

Under the will of her late father Mrs. A. receives a life interest in between £5 and £6000 with remainder to her children, and is in receipt of an income from that source, and with what she and her husband have from their own moneys, an income of between £5 and £600 per annum, and her husband and herself are, with Mrs. C., about to enter into business again.

The applicant and his wife have all their moneys invested by the Permanent Trustee Company of N.S.W. Limited and their whole interest is in this State and in addition to their own investments they have the expectation of benefiting under Mrs. C.’s will or her intestacy, if she died without a will. We might add that upon A. and his wife leaving Australia for England, although entitled to proceed abroad on the Polish Passports held by them, they preferred to apply for and obtain a Permit from the Commonwealth Government and to travel under the aegis of the Commonwealth and with the knowledge that they must return to the Commonwealth on account of not having passports.

The applicant was absent from Australia for a period of about six months.

The cause of the absence was Mrs A.’s ill health which made a long sea voyage advisable.

During the absence of the applicant, he did not maintain any establishment in Australia, but he stored his furniture and, on his return, he resumed his domestic establishment in the premises occupied by him before his departure from Australia.

His business interests appear to be confined to Australia.

Assuming that the facts stated above are correct, I think that the applicant could
be regarded as having resided in the Commonwealth for the twelve months
immediately preceeding his application. (See opinion of the Attorney-General dated the 9th August, 1904 (External Affairs Number 04/3767)(1) and my opinion No. 26 of 1922 dated the 26th January, 1923.(2))

[Vol. 22, p. 596]

(1) Opinion [Vol. 4, p. 311] not published.

(2) Opinion No. 1308.