Opinion Number. 1544

Subject

nationality nationality: revocation: certificate obtained by false representation or fraud or concealment of material circumstances: failure to disclose deportation from new zealand

Key Legislation

Nationality Act 1920 s 12(1)

Date
Client
The Secretary, Department of the Interior

The Secretary, Department of the Interior, has forwarded to me for advice the following memorandum:

The abovenamed is a native of Germany who arrived in Australia on the 20th August, 1926, and was granted a certificate of naturalisation on the 12th December, 1932. In connection with his application for naturalisation a satisfactory report as to his character was furnished by the Investigation Branch at Sydney, and the persons who furnished the three certificates of character required with such applications, were also reported to be of good repute.

The applicant stated that he resided in New Zealand from 25/11/29 to 12/7/31, less a period from 23/9/30 to 11/5/31 during which he was said to be working on a ship trading to America.

As evidence of his residence in New Zealand, he furnished a letter from the Customs Department, Wellington, dated the 4th October, 1932, see copy herewith. It will be observed that there is nothing in that letter to suggest that F. had been compelled to leave New Zealand.

According to advice received by the Commissioner of Police at Sydney from the Police authorities in New Zealand, F. arrived in that Dominion with Wirth’s Circus in June, 1930, and was granted a permit to remain for six months. He left the Circus and joined the Communist Party in New Zealand under the name of H.N., being active in that movement both in Wellington and Auckland. His permit was subsequently cancelled and he left as a member of the crew of the s.s. ‘Golden Cross’ on 23/9/1930. He returned to New Zealand in June, 1931, and was arrested and ordered to be deported. He sailed again on 12/7/1931 by the s.s. ‘Golden Cross’.

In view of his previous residence in Australia, and as no information was available that he was a deportee from New Zealand, he was permitted to land at Sydney on the 19th July, 1931. The Police records at Sydney show that this man applied for membership of the Communist Party of Australia on 23/7/1931 and was subsequently admitted.

Shortly after becoming naturalised in December, 1932, he proceeded again to New Zealand, arriving at Wellington on 23/1/1933, accompanied by his wife, who is a native of New Zealand.

The Police authorities of New Zealand have brought under notice of the Commissioner of Police at Sydney that as F. held an Australian certificate of naturalization and a travel permit for New Zealand issued by the Customs authorities at Sydney, it was difficult to refuse him admission and he was therefore allowed to land on a temporary permit under bond to be of good behaviour.

The matter has been referred to this Department for consideration as to whether any action can be taken, presumably in the direction of revoking F.’s certificate of naturalization.

The Inspector, Investigation Branch, Sydney, has furnished a copy of a letter obtained by the Police ‘from a delicate source–to be treated as strictly confidential’, relating to A.F., who is apparently identical with F., and the question of his admission to membership of the Communist Party of Australia, see copy of letter dated the 6th August, 1931, herewith.

Will you kindly advise whether, in view of the evidence available that F. was a member of the Communist Party at the time of his naturalization, the Department would be justified in taking any action under section 12(1) of the Nationality Act 1920–1930, which reads as follows:

12(1) Where the Governor-General is satisfied that a certificate of naturalization has been obtained by false representation or fraud, or by concealment of material circumstances, or that the person to whom the certificate is granted has shown himself by act or speech to be disaffected or disloyal to His Majesty, the Governor-General shall by order revoke the certificate.

Before the Governor-General revokes a certificate of naturalization in accordance with the provisions of section 12(1) of the Nationality Act 1920–1930, he must be satisfied that the certificate has been obtained by false representation or fraud or concealment of material circumstances or that the person to whom the certificate is granted has shown himself by act or speech to be disaffected or disloyal to His Majesty.

It would appear that F. was granted a certificate of naturalization on 12th December, 1932, and that prior to that date he had applied for membership of the Communist Party of Australia and was subsequently admitted. In 1930 he had been in New Zealand and had joined the Communist Party there and in the following year had been arrested and ordered to be deported.

In my opinion F.’s failure to disclose the fact that he had been deported from New Zealand may be regarded as the concealment of material circumstances, within the meaning of section 12(1) of the Nationality Act 1920–1930, and the Department would be justified in taking action under that section with a view to the revocation of the certificate of naturalization issued to him.

[Vol. 26, p. 376]