Opinion Number. 717

Subject

NATURALIZATION WHETHER CERTIFICATE OF NATURALIZATION GRANTED IN ERROR TO INELIGIBLE PERSON IS VALID

Key Legislation

NATURALIZATION ACT 1903, ss. 5, 11

Date
Client
The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has forwarded for advice the following memorandum:

In 1911 this Department received an application for naturalization from a person who stated that he was a Turkish subject by birth, and that his birth place was Jodsidat, Merjayoon, Turkey. It was presumed, at the time, that the place mentioned was in Turkey in Europe, but it has now been ascertained that it is in Turkey in Asia.

2. A certificate was issued.
3. The certificate was obtained without any untrue statement of fact or intention; therefore, no case exists for revocation of the certificate under section 11 of the Naturalization Act 1903, but as the applicant is an aboriginal native of Asia, he was not eligible, according to section 5, to apply for a certificate.

Section 5 of the Naturalization Act 1903 renders an aboriginal native of Asia, Africa or the Islands of the Pacific, excepting New Zealand, ineligible not only to apply for a certificate of naturalization but also to have issued to him a certificate of naturalization, for, if ineligible to apply, he is still more so ineligible to be naturalized. The Governor-General, moreover, has no power to issue a certificate to such a person.

In the case in question a person who is ineligible to apply has, in error, been granted a certificate of naturalization and the question arises whether the naturalization holds good.

In consideration of the fact that the person to whom the certificate has been granted is ineligible, and that the Governor-General has no power to issue a certificate to such a person I am of opinion that the naturalization does not hold good.

[Vol. 14, p. 363]