The
applicant has argued that he is a Zimbabwean and, therefore, he has not lost
his domicile of origin as he still has an immovable property in Zimbabwe, and
continues to pay rates and taxes like all Zimbabweans. He further argued that
the reason why he declared that he was a returning resident was ...
The
applicant has argued that he is a Zimbabwean and, therefore, he has not lost
his domicile of origin as he still has an immovable property in Zimbabwe, and
continues to pay rates and taxes like all Zimbabweans. He further argued that
the reason why he declared that he was a returning resident was as a result of
the advice from a friend...,.
On
the other hand, the first respondent's argument is that he has not been honest,
in that he misrepresented facts when he declared that he was a returning
resident, yet, in fact and in truth, he was now an alien in terms of Zimbabwe's
laws by virtue of the fact that he had now acquired Australian citizenship, and
his passport was stamped the words “indefinite stay”.
The
question which falls for determination is whether or not the applicant has now
lost his domicile of origin to Zimbabwe.
Perhaps,
the first question to ask is: what is domicile? According to the Chamber
Concise Dictionary, 1988, Domicile is defined as:
“a
dwelling place, one's legally recognized place of residence.”
It
is, therefore, a term used to define one's status, capacity, and rights. Every
person has a domicile. It can either be a domicile of origin or of choice.
Basically,
everybody is born with a domicile, being that of origin, which he/she can later
change by choice. Domicile of origin is that which he/she is invested at birth.
He retains it until he chooses another, which becomes his domicile of choice –
see Encyclopaedia of the Laws of England vol.4 SWEET and MAXWELL, 1897...,.
Domicile of choice was described in the leading and celebrated English case of
Udny v Udny (1869, L.R., H.L. SC441) where LORD WESTBURY stated -
“Domicile
of choice is a conclusion, or inference, which the law derives from the fact of
a man fixing, voluntarily, his sole or chief residence in a particular place
with the intention of continuing to reside there for an unlimited time...,.
There must be a residence freely chosen, and not prescribed or dictated by any
external necessity, such as the duties of office, the demands of creditors, or
relief from illness, and it must be residence fixed, not for a limited period,
or particular purpose, but, general and indefinite in its future contemplation.”
The
question which falls for determination is whether or not the applicant lost his
domicile of origin..., when he acquired the Australian citizenship?
Section
3 of the Immigration Act [Chapter 4:02] states -
“3.
Domicile
(1)
Subject to this section, a person shall be regarded, for the purposes of this
Act, as being domiciled in a country if -
(a)
He resides permanently in that country; or
(b)
That country is the country to which he returns as a permanent resident.
(2)
A person who resides in Zimbabwe by virtue of the fact that –
(a)
He has been allowed to enter, or remain, in Zimbabwe, through error, oversight,
misrepresentation, or a contravention of this Act, or a repealed Act; or
(b)
It has not been discovered that he is a prohibited person or an alien;
shall
not acquire a domicile in Zimbabwe.”
Further,
section 3 subsection 4 of the Immigration Act [Chapter 4:02] reads -
“4.
Subject to subsection (5) -
(a)
A person shall, for the purposes of this Act, lose his domicile in Zimbabwe if
he -
(i)
Has voluntarily departed from, and resides, outside Zimbabwe, with the
intention of making his home outside Zimbabwe; or
(ii)
Is absent from Zimbabwe for a continuous period of seven years, or such longer
period as the Minister may, at his request, fix, before the expiry of that
period:
provided
that the Minister may, in special circumstances, fix a longer period in terms
of this subparagraph after the expiry of the period of seven years;
(b)
The fact that a person has taken up residence outside Zimbabwe shall be prima
facie evidence of his intention of making his home outside Zimbabwe, and the
onus of proving otherwise shall be on the person who (sic) status is in
question;
(c)
The fact that a person who was domiciled in Zimbabwe has made any statement,
whether for the purposes of this Act or any other enactment or otherwise, to
the effect that he is no longer a resident, or no longer regards himself as a
resident of Zimbabwe, shall be prima facie evidence that he has lost his
domicile in Zimbabwe.”
It
is therefore clear that a subject can lose his/her domicile of origin by either
voluntary departure from Zimbabwe and residence outside Zimbabwe, with an
intent of making his home outside Zimbabwe, or, alternatively, is absent from
Zimbabwe for a continuous period of seven years.
The
applicant was away for a period of two years only, therefore, the alternative
is not subject to debate.
The
question here is the nature of his departure, and his intention when he did so.
The
intention of a subject can either be express, or implied by his actions.
The
applicant voluntarily departed to Australia. Upon arrival, he chose, and
assumed, Australian citizenship. He resided, and undertook his studies there.
His intention was not expressed. It can only be read from his conduct, that is
-
(1)
His voluntary departure from Zimbabwe; and
(2)
His election to assume Australian citizenship, coupled with his physical
presence thereat for an indefinite period.
In
Fenner v Fenner 1943 SR188..., TREDGOLD J, in dealing with the question of the
determination of intention in the question of domicile, stated -
“The
determination of a man's intention must be a subjective question. It may be
evidenced by outward circumstances but must be decided on the simple fact of
his state of mind.”
The applicant's conduct, in my opinion, can only
lead to one and only irresistible conclusion, being that he intended to abandon
his domicile of origin. In other words, he had a definite intention (animus
manendi) to permanently remain in Australia, as opposed to a “floating” intention,
being the desire to return to his domicile of origin upon the happening of a
certain event, as observed by LORD WESTBURY in Udny v Udny (1869, L.R., H.L.
SC441).
