109-NLR-NLR-V-58-V.-PANDARAM-Appellant-and-THE-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PAKI.pdf
1957Present: H. N. G. Fernando, J.
V. PANDARAM, Appellant, and THE COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANIRESIDENTS el al., Respondents
S. C. 259—Citizenship Application DD. 2,106
Indian and Pakistani Residents (Citizenship) A.ct, 2io. 3 oj 1949—Sections G (2) (tj>
and 14 (4)—“ Suitable employment_
An applicant can, in the absence of special circumstances which might indicate.-the contrary, bo assumed to have a suitable employment to support himselfand his dependants (irrespective of their number) within the moaning of sections,li (2) (t) of the Indian and Pakistani Residents (Citizenship) Act if he has an.employment which is reasonably likely to bo rogular and permanent and which-,is of a common and recognized type.
In the context- of the statute, Cages 13 and 14 of the Form of npplicatiommust bo regarded as nothing more than a means of eliciting informationsns to the employment and income of the applicant and his dependants.
jA-PPEA'L under the Indian and Pakistani Residents (Citizenship) Act-
Waller Jayatcardena, with S. P. Amamsingham, for the applicant-appellant.
H. V. Perera, Q.C., with -V. D. HI. Samaralcoon and N. V. WiraseJceraKfor the objector.
V. Ten DC Loon, Crown Counsel, with Mervyn Fernando, Cro-vn Counsel-lor the respondent.
Cur adv. vult_
May 2$, 1957. H. N. G. Fernando, Jr—
There arises upon this appeal] the necessity to construe yet another-jjrovision of the Indian and Pakistani Residents (Citizenship) Act No. Jof 1949, namely section 6 (2) (i), which requires an applicant to satisfytho Commissioner—'
(a) that he is possessed of an assured income of a reasonable amount;,to support the applicant and his dependants, if any ; or
(h) that he has a business or employment ora lawful means of livelihood–' to sujqmrt the applicant and his dependants, if any.
Tho form in which I have set out tho requirements is not exactly thatin which it appears in the Statute, but it is clear from the arguments of"Counsel that they agree that this form correctly represents tho require-ments which tho Legislature intended to impose. I should add thatCrown Counsel who appeared on behalf of the Commissioner quite rightlydesired not to bo heard, since the decision of the Commissioner was ones
.given in a judicial capacity upon objoction taken to tho registration of.theapplicant, and that I decided to hear Counsel on behalf of the objectoralthough the latter had not been made a respondent to this appeal.
Tho Commissioner had decided that, in regard to requirement " (6) ”tho income of an applicant from a business or employment must be suffi-cient to support himself and his dependants, and that no account can botaken of any wages received by the wife or minor children of the applicant.It was on the other hand contended for the applicant that those wages,because the husband or father of the recipient has a right of controlover them, can be taken info account, either as an assured incomo pos-sessed by tho applicant or as a lawful means of livelihood available forutilisation by tho applicant, in determining whether tho requirementtaken as a whole is satisfied. Alternatively, it was contended that,in view of tho receipt of wages by the wifo and a minor child, the .applicantcan at the least claim that tho wife and child should not be regarded asdependent on him and that accordingly the need to support them shouldbe ignored for the purpose of the determination whether or not the appli-cant's own wages from employment are sufficient to support himselfand his dependants.
The applicant in the present case had to meet a further difficulty. Cage13 of the Form of application required him to specify the business or■employment, if .any, if the applicant had a business or employmentclaimed by him to be sufficient to support himself and his dependants.jBut the noto against this cage is as follows :—
Paragraph 13 should only bo filled up if the applicant claims that
the income from tho business or employment is adequate
Tho applicant did not sjmeify his employment in Cage 13, but insteadspecified his own wages and those of liis wife and one minor child inCage 14. Tho Commissioner lias hold that the omission of tho applicantto fill up Cage 13 (considered in the context of the note to that cage)constitutes an admission that his own wages from employment are in-sufficient to support himself and his dependants. Having thereforefirst decided that the applicant’s wages alone could bo taken into account,the Commissioner did not consider the question of fact whether thosewages arc or are not adequate to support him and his dependants, becausoin his view the admission conclusively decided that question against theapplicant. Having regard to tho provisions of section 14 (4) of tho Act,this view' of the Commissioner was unwarranted ; the Form is such thatan applicant can easily be led (or misled) into thinking that where thereare two or more wage-earners in a'family, cago 14 is the appropriaf onoto fill up ; moreover, the Note against Cago 13 does not explicitly stateThat Cago 13 must be filled tip if the applicant claims that his wages arc4idcquate, nor does tho Hote to Cage 14 warn the applicant that it is to bo■filled up only if his own wages are inadequate. In the context of the Act,the two Cages must be regarded as a means of eliciting information as tothe employment and incomo of the applicant and his dependants, and.not as a “ concealed trap ”.. If, for example, the wages of an applicant
arc in fact manifestly adequato for the support of himself and his depen-dants, it nould surely bo contrary to tho principles of natural justice toassumo inadequacy merely because- Cage 14, and not Cage 13, is filledin by the applicant. It will be seen in any event that, in view of thoconstruction which should in my opinion be placed upon tho requirementin section G (2) (i), this matter of filling up the Cages is merely a “ redJierriiig'
With much respect to the learned Counsel who represented both sidesbefore tho Commissioner and in this Court-, the view I have formed isdifferent from those for which they respectively contended. It is clearthat-the condition laid down in section G (2) (i) will bcfulfilled if an applicantcan satisfy either of tho requirements («)and (6) which I have set out above;but consideration of requirement (a) is of much assistance in construingrequirement (6) which is tho one relevant in the present case. I agreewith Counsel for the respondent that requirement (a) is intended to applyto eases of “ investment income ” or “ unearned inconio ”, and require-ment (b) to cases where an applicant is engaged in somo " activity ”.
In the case of an applicant who claims to fulfil requirement (a), he mustbo possessed of an assured income of «• reasonable amount to supporthimself and his dependants. According to tho dictionary meaning of“ ass u rod ”, tho income must be “secured” or “certain” in the sensethat the applicant’s right to it is permanent and unconditional and thosource of the income must bo such that there is certainty, or at leastreasonable certainty, that it will yield or produce income. But it is notenough that tho applicant has such a right to income from such a source :requirement («■) imposes a second condition relating to tho amount of thoincome, namely that tho amount must be reasonable. The applicantwill therefore have to establish that, to support himself and his depen-dants, ho will have ail income which is firstly assured and secondly of areasonable amount ; and tho second condition requires the Commis-sioner to take into consideration tlio amount of the income and to decidewhether or not it is a “ reasonable ” amount to “ support ” the applicantand his dependants.
Requirement (b) is that an applicant must hare a suitable business oremployment or other lawful means of livelihood, to support himself andhis dependants. It is significant that the Begislaturo lias not expresslyreferred in this instance (as it did in requirement (a) ) to the incomederived by the applicant or to the amount of such income, and I cannotagree with Mr. Pcrcra’s contention that tho omission of such a referenceis duo to tho necessities or intricacies of draftsmanship : if requirement(b) was intended to import a condition of the samo nature as the secoudcondition included in requirement (a), tho intention could have beenexpressed by tho insertion of a very few words. To take thereforetho case of an applicant who has an employment, the condition is onlythat it must be suitable, having regard to the need to support tho applicantand his dependants. Thero would in my opinion bo many cases in whichthe question of “suitability” is concluded by the very nature of anemployment :if for instance, an applicant is employed by the
Government or a local authority as a Doctor or a clerk, his employmentwould be prima facie “ suitable ” within the meaning of the requirement,and a Further detailed or precise "means test” by reference to wages andthe actual number of dependants would not ordinarily be necessary. Anemployment which is reasonably likely to bo regular and permanent, and.not casual or intermittent, and which is of a common or recognised type,would prima facie be “ suitable ” to support the applicant and his de-pendants , if only for the reason that numerous citizens do in fact supporttheir families with the wages derived from such employment. Therebeing no hint in the Statute of an intention to discriminate in favour ofapplicants in employments which are comparatively more remunerative,an employment cannot be considered “ unsuitable ” merely becausethe wages derived therefrom are comparatively low. Indeed Gage 13of the Form only requires the nature of the employment to be specified ;the Form docs not require an applicant to state the amount of the wages,and thus assumes that an employment can be considered suitable per se.Particularly then, as in the present case, if the employment is one in atrade for which wages and conditions of service, including the provisionof housing and medical facilities, are laid down by law, it must be con-sidered “ suitable ” within the meaning of the requirement unless for anyspecial reason it appears to be unsuitable. A possible such reason mightbe that, having regard to the standard of living to which an applicantand his family have been previously accustomed, the wages from theemployment in question are likely to be insufficient for the support of thefamily ; another might be that the employment is unsuitable in the ease ofthe particular applicant for reasons of health, physique or capacity.But where, as in the present case, the applicant has for a long period hadthe same employment and is of a class of persons ordinarily engaged insuch employment, there is nothing which can displace the reasonable-assumption that the employment is suitable to support him and hisfamily irrespective of its number of members. To hold otherwise wouldbe to let in the absurdity that Kangany or Rubber Tapper X with a wifeand three children might obtain citizenship whereas Kangany orRubber Tapper Y might be disqualified solely for the reason that the-stork had visited his line-room onee too often. '
I would therefore hold that in the case of an applicant who has an em-ployment which if reasonably" likely to be regular and permanent and whichis of a common and recognised type, it should be assumed in the absenceof special circumstances which might indicate the contrary that- the em-ployment is suitable having regard to the need of the applicant to support-liimself and his dependants and that this assumption should be madeall the more readily if the employment is one in respect of which wagesand conditions arc prescribed by law. In such eases no mathematicalcomputation by reference to the amount- of wages and the number ofdependants is necessary or permissible..
The appeal is allowed. In view of the fact that the appeal is against ajudicial determination by the Commissioner upon an objection and tliat-"thc objector was not made a party to the petition of appeal, there wilLbe no order as to costs.
Post Script um
Por purposes of clarity I should add that the Commissioner shouldhave rejected the objections to the application. The order refusing theapplication is sot aside and an order allowing the application has to besubstituted therefor.
Appeal allowed.