Millar v Minister of Labour, Home Affairs and Housing (now National Security)
| Jurisdiction | Bermuda |
| Judgment Date | 08 December 2011 |
| Docket Number | Civil Jurisdiction 2011 No. 93 |
| Date | 08 December 2011 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Civil Jurisdiction 2011 No. 93
Mr R DeSilva for the Applicant
Mr M Douglas for the Respondent
The following cases were referred to in the judgment:
Udny v UdnyELR (1869) LR 1 Sc & Div 441
Winans v Attorney GeneralELR [1904] AC 287
Plummer v Inland Revenue CommissionersUNK [1988] 1 All ER 97
Judicial review - Domicile of choice - Domicile of dependency - Bermuda status - whether daughters, born outside Bermuda have status
JUDGMENT of Wade-Miller, J
1. This is an action initiated by the Applicant, Jennifer Susan Millar by way of Judicial Review of the Minister of Immigration's decision, seeking a declaration that she was at the date of her daughters'- Laura Ann Nisbet Millar born on the 27th August 1985 (hereinafter referred to as Laura) and Victoria Jean Nisbet Millar born on the 27th May, 1987 (hereinafter referred to as Victoria) - births domiciled in Bermuda. Therefore, pursuant to sections 18(2) and 18(5) of the Bermuda Immigration and Protection Act 1956 ("the Act") her daughters are deemed to possess Bermuda status from their respective dates of birth. During the proceedings Counsel for the Applicant Mr DeSilva abandoned his claim for certiorari and mandamus.
2. The Attorney General sought to resist the application on the ground that based on the evidence and the law the Applicant was more likely domiciled in the Bahamas at the date of her daughters' births. In the circumstances the court should refuse to grant the declaration sought.
3. I shall state briefly a few undisputed facts relevant to the issue to be resolved by the court.
i. The Applicant possesses Bermuda status. She applied to the Department of Immigration (hereinafter referred to as the "Department") for confirmation that her daughters Laura and Victoria mentioned in paragraph 1 who were both born in the Bahamas were deemed to possess Bermuda status under section 18(2) and (5) of the Act.
ii. Section 18(2) and 18(5) respectively stipulates that:-
"18 (2) Where a person is, after 30 June 1956, and before 23 July 1993, born outside Bermuda, he shall possess Bermudian status if'
(a) he is a Commonwealth citizen; and
(b) one of his parents was domiciled in Bermuda at the time of his birth and that parent possessed Bermudian status at that time.
18 (5) A person to whom sub-sections (1) or (2) of this section applies shall be deemed to have attained Bermudian status at the time of his birth."
iii. In a letter dated 26th September 2005, the Department of Immigration informed the Applicant that in order to determine whether Laura and Victoria acquired status at birth it needed to determine the Applicant's domicile at the time of each child's birth.
iv. A number of certified copies of documents were submitted to the Department among them a certified copy of an entry in the Register of Marriages of the Bahamas Registrar General's Department dated 14th June 2005 which verified the Applicants marriage to Michael Anthony Dorsett Millar on the 1st August 1983: certified copies of entries in the Register of Births in Nassau, Bahamas for Laura and Victoria: an affidavit contending the Applicants domicile sworn on 23rd May 2005. A number of letters were exchanged between the Department and the Applicant who provided the Department with additional information.
v. Finally, in a letter dated 25th October 2010 the Department informed the Applicant that they had concluded that there is insufficient evidence in support of paragraph 18 (2)(b) of the Act. Therefore Laura and Victoria are considered restricted persons and require specific permission from the Department to continue to reside, own property, et cetera in Bermuda.
4. This Application before the court challenges the merit of the conclusion drawn by the Department. It is clear from the language of the statute, that any person who claims to be deemed to have Bermuda status at the time of their birth must prove that at the time of birth one of their parents was domiciled in Bermuda and possessed Bermudian status at that time.
5. I shall now examine in microscopic detail the evidence presented. This evidence of the domicile of Mrs Millar came from a number of sources which includes supporting documentation as well as the evidence of - Mrs Millar's mother Elinor Anne Nisbet, the Applicant Jennifer Susan Millar her estranged husband Michael Anthony Millar and family friends Nancy Eileen Murphy and Mary Grosvenor Middleton Cook.
6. The Applicant Mrs Susan Millar, nee Nisbet (whom I shall refer to as Mrs Millar) was born in Bermuda on the 17th February, 1958 in Pembroke, Bermuda. Her father Thomas William Nisbet was born on 26th February 1933 in Pembroke, Bermuda. Her mother Elinor Ann Nisbet nee Stewart was born on the 10th February 1934, in Niagara Falls, Canada. Her mother moved to Bermuda in 1950 met and married Mrs Millar's father in 1953. Mrs Millar and three other siblings moved to the Bahamas with their parents when she was two years old.
Mrs Elinor Nisbet's evidence
7. The Applicant's mother Mrs Elinor Ann Nisbet swore an affidavit upon which she was cross examined by Mr Douglas the acting Solicitor General.In her testimony Mrs Nisbet avowed that she has Bermuda status. Her mother was Bermudian and her father Canadian. She was born in Canada on 10th February 1934 and her family moved to the Bahamas in 1939 when she was about five years old. Shortly after they moved to the Bahamas World War II broke out and they were stranded in the Bahamas. During the war her father a travelling barber who travelled between the Bahamas, Bermuda and Cape Cod on the lady boats was unable to pursue his line of work.
8. Mrs Nisbet testified that in 1950 when she was about 16 years old she visited Bermuda for a holiday. She liked it so much that she decided to remain living in Bermuda while her parents remained residing in the Bahamas. During this period she met and married, Thomas William Nisbet, Mrs Millar's father.
9. Mrs Nisbet said that her father died in 1956 and her mother in 1958. She was the only child and her parents left her the property in which they had been living in the
Bahamas. The first two years after her parents' death she tried to have someone operate the property as a guest house. Thereafter, she unsuccessfully attempted to sell the property. Because of the difficulty trying to sort the property out long distance she and her husband made a decision to go to the Bahamas to sort things out.
10. In 1960 she and her husband moved their family to the Bahamas. The intention was to relocate temporarily, fix up the inherited property and sell it. Thereafter, return to and live in Bermuda. There was no intention to reside permanently in the Bahamas.
11. Mrs Nisbet said as things worked out over the years they did not return to Bermuda to live permanently during her husband's lifetime. At first in order to provide the family with an income her husband began working for a local company in Nassau. Subsequently, he went into business with another Bermudian. This involved the manufacture and wholesale distribution of the Royall Lyme products. His employer operated the Bermuda end of the business while her husband operated the Bahamas end.
12. After several years of doing this his Bermudian employer sold the business and her husband opened up his own business in the Bahamas called Nisbet Stewart Limited. This was a wholesale business one line of which involved distribution of the Royall Lyme products.
13. Mrs Nisbet continued, that over the years they kept in close contact with their family and friends in Bermuda. They visited Bermuda regularly, particularly the children including Susan (Mrs Millar) who would come to Bermuda for the school holidays.
14. Her husband, in his...
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