X. S. FERNANDO, J.— Vythinathan v. The Commissioner for
Registration of Indian and Pakistani Residents
1958Present: T. S. Fernando, J.R. VYTHINATHAN, Appellant, and THE COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,
8. C. 913—Citizenship Application C 2,183
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Application forregistration as citizens—Refusal on ground of absence of genuine intention tosettle permanently in Ceylon—Supreme Court will not interfere in the absence ofmisdirection.
The Commissioner for Registration of Indian and Pakistani Residentsrefused to register as citizens an Indian resident, his wife and four minorchildren on the ground that their permanent settlement in Ceylon wasnegatived by evidence relating to the birth and education of the children inIndia which the Commissioner considered as not being indicative of a genuineintention to settle permanently in Ceylon.
Held, that the question whether the applicants had permanently settled inCeylon was primarily one for decision by the Commissioner, and where itcould not be said that the decision was one which the Commissioner could notfairly or reasonably have reached on the evidence before him the SupremeCourt would not, in the absence of misdirection on the part of the Commissioner,interfere with his decision.
/APPEAL, tinder section 15 of the Indian and Pakistani Residents(Citizenship) Act.
C. Shanm uganayaga m, for the applicant-appellant.
E. R. tU Fonsel-a. Crown Counsel, for the respondent.
Cur. adv. vult.
August 25, 1958. 1’. S. Fernando, J.—
The appellant’s application for registration of his wife, his four minorchildren and himself as citizens of Ceylon under the provisions of theIndian and Pakistani Residents (Citizenship) Act, No. 3 of 1949, wasrefused by the Commissioner, and the reasons for the refusal are to befound in the latter’s order of 6th April 1954. This appeal canvasses thecorrectness of the order of refusal.
The only question at issue at the inquiry which preceded the refusalof the application was whether the applicant had permanently settled inCeylon. In deciding this question the Commissioner believed he had todecide whether the applicant had abandoned his domicile of origin.This very question has sinco been the subject of decision by their Lord-ships of the Privy Council in Tennekoon v. Duraisamy1. In that case,Lord Morton of Henryton in delivering the opinion of the Judicial Com-mittee stated that the question of proving a “ change of domicile ” didnot come at all into the matter of a decision as to whether an applicantfor registration as a citizen had permanently settled in Ceylon. In the
■['_ g. FERNANDO, J.—Vythinathan v. The Commissioner for
Registration of Indian and Pakistani Residents
liu|it 0f that decision it is now beyond controversy that the Commis-sioner had misdirected himself on the point, and, if the Commissioner’sorder of refusal rested purely on his determination that the applicanthad not established that he had abandoned his domicile of origin, thisappeal must be allowed and the Commissioner directed to take the othersteps indicated in the Act on the basis that the applicant has made outa prima facie case for registration.
My attention has however been drawn to the evidence recorded at theinquiry in regard to the place of birth of all four children of the applica i, iand particularly to the evidence relating to their education. The datesof birth of the four children are given as 30th April 1933, 10th February1943, 25th November 1944 and 8th January 1947 respectively. Sathiva-wageswaran, the eldest, was the only child living in 1942 and it wouldappear that, although he was for a short period of time in a school inCeylon, he was taken to India in 1942, i.e. when he was about 9 yearsof age. Although he came back in 1947 along with the applicant’s wifeand the three younger children, he returned to India for his educationbecause—to use the applicant’s own words—“ he could not fit suitablyinto the scheme of studies in a Ceylon school. ” The girl Nagalakshmi issaid to have been in Ceylon since 1947, i.e. from the time she was fouryears of age and has never been to school in Ceylon. The applicanttestified that this girl was sent to a school in India for a short time. Shemust therefore have been sent to school in India when she was quite tiny.No reason has been advanced as to why she was not sent to a school inCeylon where primary education is compulsory. The third child, Rama-nathan was sent to a school in India from the time he was about 6 yearsof age. He was in school in India even at the time of the inquiry, antione reason given for choosing a school in India for this boy was that therewas no suitable living accommodation for him in Ceylon. Two otherreasons offered were (1) that the applicant’s father wished that the childshould remain with him and (2) that, as he has not learnt any English,he cannot “ fit into a secondary school ” in Ceylon. In regard to theyoungest child, the boy Krishnan, there is no explicit evidence that he isin school in India or in Ceylon. The application for foreign exchangemade by the applicant himself on 17th June 1948 shows, however, that themoney was required, inter alia, for the education of his 3 children. Theapplicant is not an uneducated man and has been for many years a clerkin Colombo mercantile establishments. As the girl was on the applicant'sevidence in Ceylon from 1947 onwards, the clear implication of the state-ment in the application for exchange is that the youngest child was alsobeing educated in India.
With these facts before him, the Commissioner has stated that, even ifhe were to disregard the declarations made by the applicant in his applica-tions for foreign exchange that he was temporarily resident in Ceylon, heshould still regard permanent settlement in Ceylon as not having beenproved. Assuming that the statements made by the applicant in theapplications to the Exchange Controller were factually incorrect, thequestion which I have to ask myself appears to be whether there wasmaterial before the Commissioner on which he couldreasonably have come
Weerasinghe V. Kathirgamalhamby
to the conclusion that the applicant had failed to establish the fact ofpermanent settlement. I must remind myself that in Duraisamy’s case1their Lordships of the Privy Council, while expressing the opinion thatelection to apply for registration combined with long and continuousrcs> deuce affords strong evidence that an applicant has permanentlysett led in Cevlon, nevertheless stated that they cannot find that the com-bination of election and long and continuous residence precludes theCommissioner from coming to a decision, after considering all relevantm alters, that at the time of his application the applicant had not a genuineintention to settle permanently in Ceylon. The question was one pri-marily for decision by the Commissioner, and, on the facts relating to thechildren, he has stated that he would have expected a person who hadsettled in Ceylon permanently to have reconciled himself to putting upwith any difficulties involved in the birth and education of his childrenin Ceylon rather than arrange that these things should take place inIndia, possibly at greater expense to himelf. I am quite unable to saythat the Commissioner has misdirected himself on the point involved and,as 1 ai n also unable to say that in the state of the facts before him his decision,is one which he could not fairly or reasonably have reached, the correctcourse for me, sitting in appeal, to take is to decline to interfere with theorder of refusal. The appeal is accordingly dismissed with costs which Ifix at Es. 105.
R. VYTHINATHAN, Appellant, and THE COMMISSIONER FOR REGISTRATION OF INDIAN AND