IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G1Ol of 1984 BETWEEN: THOMAS BARTON Applicant AND: THE MINISTER FOR FOREIGN AFFAIRS First respondent AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Second Respondent ORDER Judge making order: Beaumont, J. Date order made: 30 March 1984. Where made: Sydney THE COURT ORDERS THAT: Upon the applicant giving the usual undertaking as to damages: 1. Make orders 1 and 2 as asked in the notice of motion. 2. Order that the first respondent be directed to extend, by an authorised officer, the subject passport for a period of three months. 3. Reserve liberty to apply on such notice as a Judge shall allow. 4. Adjourn the further hearing of the matter to Friday, 6 April 1984 at 9.30 a.m. for directions. 5. Costs reserved. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) . GENERAL DIVISION ) No. G1Ol of 1984 BETWEEN: THOMAS BARTON Applicant AND: THE MINISTER FOR FOREIGN AFFAIRS First respondent AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Second Respondent CORAM: Beaumont, J. DATED: 30 March, 1984. REASONS FOR JUDGMENT In this application for review under the Administrative Decisions (Judicial Review) Act, 1977, ("the Judicial Review Act") the applicant seeks a review of the two decisions of the first respondent: first, that Australian passport number P464177 issued to the applicant on 3 April 1979 and valid for five years therefrom, be cancelled; and secondly, that the applicant be not issued with an Australian passport. The applicant also seeks a review of the decision of the second respondent that the applicant is not an Australian citizen. The applicant now moves for interim relief pursuant to s.15 of the Judicial Review Act and s.25 of the Federal Court Act, 1976 for orders that the operation of the decisions of the first respondent be suspended until further order. He also seeks, on an interim basis, a mandatory order that the first respondent be directed, by an authorised officer, to extend the said passport for a limited period, pending a final hearing of the proceeding. The applicant became an Australian citizen and a British subject by naturalisation on 26 September 1955. He was issued with an Australian passport in 1969. This passport was cancelled in February 1974. The applicant requested another passport in numerous applications to the Department of Foreign Affairs. On 353 April 1979, the subject passport was issued. The applicant is at present resident in the United Kindom where he is employed by the English subsidiary of a Swiss corporation as a manager in its commodity trading activities. He needs to travel internationally for business and other reasons from time to time. By letter dated 14 March, 1984, the Australian High Commission, London, wrote ;to the applicant as follows: "I refer to your application for a new Australilan Passport, which as you are aware, has been the subject of consideration by the Department of Foreign Affairs, Canberra in liaison with the Department of Immigration & Ethnic Affairs. We have now been informed that the Department of Immigration & [Ethnic Affairs has advised the Department of Foreign Affairs that, a legal opinion was obtained, on the 31 December 1982, to the effect that you ceased to be an Australian Citizen under Section 17, of the Citizenship Act by virtue of your voluntary acquisition of Paraguayan Citizenship on the 12 August 1974. We are further informed that your successful application for cancellation of your Paraguayan Citizenship of the 20 November 1974 has no effect on the loss of your Australian Citizenship. As you are no longer deemed to be an Australian Citizen I regret that it is not possible for you to be issued with a new Australian Passport by this High Commission. You may however' be interested to know that the Department of Immigration and Ethnic Affairs has advised that you may apply to regain Australian Citizenship following your return to Australia to take up residence. Appreciating that you may now be without a passport the Department of Immigration & Ethnic Affairs has suggested that the Hungarian Government may still recognise you as a National even if not a citizen of Hungary and that you may be entitled to a Hungarian Passport. With this in mind I am enclosing the photocopy of your Hungarian Birth Certificate and the two photographs you have provided earlier. ..." The applicant seeks to put his case in a number of ways but, for present purposes, it will suffice to mention one point only. He accepts that, by s.17 of the Australian Citizenship Act, 1948, an Australian citizen of full age and capacity who, whilst outside Australia, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, thereupon ceases to be an Australian citizen. But the applicant argues that the Department erred in its view that the events which occurred in Paraguay amounted to a "voluntary" act of the kind contemplated by s.17. In support of his contention, the applicant relied upon the affidavit evidence of Alexander Barton, who was not cross-examined, together with the reasons for judgment of the Criminal Court of the Republic of Paraguay. In those reasons, the Paraguayan Court approved the motion of free non-suit (dismissal) presented in favour of the applicant and Alexander Barton in the prosecution carried out for an alleged crime of forging public documents in that country. The forgery alleged consisted of "(amending) the date of entry of (the applicant and Alexander Barton) into Paraguay with the evident purpose of complying with the constitutional requirements in cases of naturalization". The respondents, on the other hand, rely upon some of the language used in reasons for judgment of the Paraguayan Court together with some expert evidence as to the effect of those proceedings contained in a diplomatic note from the Ministry of Foreign Affairs, Republic of Paraguay addressed to the Australian Embassay, Buenos Aires. Whether the conduct concerned constituted a "voluntary" act of the kind contemplated by s.17 18, of course, a question of mixed law and fact. In the absence of the cross—examination of Alexander Barton, whose affidavit gives a detazled account of the matter, I am of the opinion that the applicant has made out facts sufficient to raise a prima facie case for relief, notwithstanding that certain of the statements made in the reasons for judgment of the Paraguayan Court are somewhat ambiguous in their meaning. Given the jurisdiction of the Court to grant interim relief under s.23 of the Federal Court Act (see Rivki v. Minister for Immigration & Ethnic Affairs (1983) 46 A.I.R. 301 at pp.302 et seq.), I think that the balance of convenience favours the grant of mandatory relief as sought, hut I propose to limit that relief to a period of three months so that the matter may be reviewed in the near future. I make the following orders upon the applicant giving the usual undertaking as to damages: 1. Make orders 1 and 2 as asked in the notice of motion. 2. Order that the farst respondent be directed to extend, by an authorised officer, the subject passport for a period of three months. 3. Reserve libérty to apply on such notice as a Judge shall allow. 4. Adjourn the further hearing of the matter to Friday, 6 April 1984 at 9.30 a.m. for directions. 5. Costs reserved. _ | 6srtify that thia and the © preceding Pages are a irue copy of the reasons for Judgment herein of The Honourable Mr Justice Beaumont. S. Cuq ; Associate Dated 30 March 19 8¢.