Abraham and Minister for Immigration and Citizenship

[2007] AATA 1090

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V200501168

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES BEN LUDIA ABRAHAM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date28 February 2007

PlaceMelbourne

Decision The decision made by a delegate of the Minister on 2 December 2005 should be set aside and the matter remitted to the Minister with a direction that Mr Abraham’s Certificate of Australian Citizenship be amended by showing his date of birth as 20 February 1969.

(sgd) Egon Fice

Member

CITIZENSHIP ‑ Certificate of Australian Citizenship – amended date of birth – Sudanese refugee – incorrect date of birth – birth certificate – authentic documents – desirable to amend

Australian Citizenship Act 1948 s 47

Freedom of Information Act 1982

Australian Citizenship Instructions  para 7.5

Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 9 AAR 215

Re James Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910

Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373

REASONS FOR DECISION

28 February 2007 Mr Egon Fice, Member      

1.        Mr James Ben Ludia Abraham is a Sudanese refugee who arrived in Australia in March 2003.  He applied for and was granted Australian citizenship on 14 September 2005.

2.        On receiving his Certificate of Australian Citizenship (citizenship certificate), Mr Abraham noted that the birth date on the citizenship certificate was incorrect.  In his application for a citizenship certificate, Mr Abraham stated that his date of birth was that shown on his birth certificate.  He notified the Governance and Legal Assistant at the City of Ballarat who wrote to the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) in Melbourne (the Department) seeking to have the birth date corrected and a new citizenship certificate issued.  The delegate to the Minister of Immigration and Citizenship (the Minister) refused Mr Abraham’s request to amend his citizenship certificate.

3. Mr Abraham seeks a review of the decision of the Minister pursuant to s 52A of the Australian Citizenship Act 1948 (the Act).  The only issue in this matter is whether it is desirable that Mr Abrahams citizenship certificate be amended as he has requested.

RELEVANT FACTS

4.        Mr Abraham claims he was born in Juba in the south of Sudan on 20 February 1969.

5.        Mr Abraham attended primary school between 1975 and 1981, followed by intermediate schooling between 1981 and 1984.  He attended secondary school between 1988 and 1991 and again between 1997 and 1998.  He was apparently employed between 1992 and 1997. 

6.        In 1998, when he was at secondary school the second time awaiting results of recent examinations, a number of soldiers came and surrounded the school ordering the students onto lorries.  Although Mr Abraham, along with some other students, managed to avoid immediate arrest, he was subsequently arrested some distance from the school. 

7.        Mr Abraham was questioned and beaten by the soldiers and forced onto a truck at gunpoint.  He was accused of being a sympathiser of the Sudanese Peoples’ Liberation Army (SPLA).  Mr Abraham was imprisoned for some six months during which he was beaten and tortured.  He was accused of refusing to go into military training and of passing information to the SPLA rebels. 

8.        After six months, he escaped while his guards were at prayer.  He managed to find his way home where his mother gave him money to travel to Atbara which is in the north of Sudan.  He was hidden by a relative in Atbara.  This relative was married to a man who he describes as his brother-in-law.  Mr Abraham, who is a Christian, was then assisted by his brother-in-law and the local Pastor to obtain a passport and a visa for entry into Egypt.  He was not involved in providing details for the Sudanese passport, which he said was arranged by his brother-in-law.  He had not told his brother-in-law his date of birth and, according to Mr Abraham, his brother-in-law provided the date of birth for the passport which was simply stated as 1965.

9.        Using his newly obtained passport and visa, Mr Abraham left Sudan and arrived in Aswan in Egypt on 29 April 1999.  Mr Abraham’s wife followed him about one year later.  She brought with her as many documents as could be located including his birth certificate which states his date of birth as 20 February 1969.  Also included amongst his documents was an International Student Identity Card (student identity card) which was issued in 1991.  That identity card, bearing Mr Abraham’s photograph, states that he was born in 1969.

10.      In 2000, a friend of Mr Abraham, Mr Lokuowe Bulli Henry Gordon, proposed Mr Abraham and his wife for refugee status.

11.      In 2001 Mr Abraham lodged an application for a permanent visa on refugee or humanitarian grounds for himself and his wife.  He indicated that his date of birth was 01/01/65.  By letter dated 29 July 2002, Mr Abraham was notified by the Australian embassy in Cairo that his application for a refugee visa had been approved and it included his wife and their young son.  The travel documents arranged for him in Cairo also stated his date of birth to be 01/01/1965.

12.      In his application for grant of Australian Citizenship dated 12 April 2005, Mr Abraham noted that his correct date of birth was 20 February 1969.  Despite that, his citizenship certificate was issued with the birth date 01/01/1965.

13.      On 21 January 2005 Mr Abraham wrote to the Department seeking to have the birth date on his visa amended to reflect his birth date as 20 February 1969.  He also lodged an application under the Freedom of Information Act 1982 (FOI) to have his departmental records corrected.  In support of that application he made a Statutory Declaration explaining why the incorrect date appeared on his visa and he enclosed his birth certificate.  His FOI application was refused.  Mr Abraham does not appear to have sought a review of that decision.

LEGISLATIVE SCHEME

14.      A person provided with an Australian citizenship certificate may seek amendment of that citizenship certificate under the Australian Citizenship Act 1948 (the Act). Section 47 of the Act provides:

(1)       Where the Minister is satisfied that it is desirable for any reason that a certificate of Australian citizenship should be amended, the Minister may amend the certificate.

(2)       A certificate that has been amended in pursuance of this section shall be of effect as so amended.

15.      The Department has prepared guidelines for its officers regarding the grant of Australian citizenship certificates.  These are set out in Chapter 7 of the Australian Citizenship Instructions (the Instructions).  Paragraph 7.2.1 of the Instructions provides:

Applications for Australian citizenship must be made in the name and date of birth shown on the applicant’s birth certificate except where there is acceptable evidence of a name change or an amended date of birth (see 7.2.3).  If a birth certificate cannot be produced, the citizenship certificate may be granted in the name and date of birth shown on the passport or travel document used by the applicant when they entered Australia.

16.      The guidelines for the amendment of citizenship certificates are set out at paragraph 7.5 of the Instructions.  Paragraph 7.5.5 provides:

Generally, amendments under s47 are to be made only in cases of departmental error.  However, delegates must not apply policy inflexibly and can go outside policy guidelines, with the support of their OIC, if the particular circumstances of a case warrant it.

Examples where a decision-maker might go outside policy include, but are not limited to:

·refugees with no documentation who are subsequently able to get genuine documents with different dates on them…

17.      Although it is generally preferable to apply policy for consistent results in administrative decision making, the Tribunal is not bound to follow policy.  In fact, the guidelines themselves are quite clear about not applying policy inflexibly. To do so in this case would place an improper fetter on the discretion exercisable by the Minister under s 47(1) of the Act. In fact, the example given under paragraph 7.5.5 where a decision-maker might go outside the policy would seem to apply to Mr Abraham’s claim. He was a refugee with no documentation to establish his correct birth date, but he was subsequently able to obtain documents with different dates on them.

APPLICATION FOR CITIZENSHIP CERTIFICATE

18.      The department guidelines, at paragraph 7.2.1 of the Instructions, make it clear that applications for Australian citizenship must be made in the name and with the date of birth shown on an applicant’s birth certificate.  This is so except where there is acceptable evidence of a name change or an amended date of birth.  In Mr Abraham’s case, the date of birth as shown on his birth certificate is 20 February 1969.  However, the Minister contended that the weight of the documentary evidence indicated that Mr Abraham’s date of birth was 1 January 1965.  Presumably, what the then Minister meant was that the documentary evidence to which she refers constituted acceptable evidence of an amended date of birth.  This contention requires close examination. 

19.      The Minister referred to Mr Abraham’s Sudanese passport issued on 13 April 1999.  It records his birth date as 1965; no day or month is recorded.  Mr Abraham gave evidence about how that passport was obtained.  He asked his brother‑in‑law, who was sheltering him in his house in the north of Sudan after he had escaped imprisonment, to do it for him.  It is quite clear that Mr Abraham played little part in securing that passport.  His brother-in-law, with the assistance of the local Pastor, paid for and obtained the passport on his behalf.  According to Mr Abraham, that is why the year 1965 was entered as his date of birth.  Given Mr Abraham’s circumstances at the time, that is an entirely plausible explanation.  The passport enabled him to escape from Sudan to Egypt.  At the time that the passport was obtained on his behalf, Mr Abraham did not have his birth certificate with him; nor did he have any other documents evidencing his true date of birth.  Mr Abraham said in evidence that his birth certificate and other documents were later brought to him by his wife when he was in Egypt. 

20.      All of the other documents referred to by the Minister which support a birth date in 1965 quite clearly are so dated as to be consistent with the date (or more accurately the year) on the passport.  The letter described as coming from All Saints Cathedral in Cairo simply records the date of birth as 1965.  That is consistent with the passport entry.  The other documents relied on by the Minister include his signed travel document to Australia which records his date of birth as 01/01/1965; a letter from the Australian embassy in Cairo to Red Cross International; a Form 842 which is an application for a permanent visa on refugee or humanitarian grounds; and a Form 681 which is a refugee and special humanitarian proposal.  In fact, given that no day or month is recorded on Mr Abraham’s passport, it is reasonably obvious that the date of 1 January recorded as his date of birth on some of these other documents has been so recorded as a matter of convenience due to the absence of an actual date.  As Mr Abraham explained, he was concerned at the time that he was seeking refugee classification not to raise any discrepancies which might cause his application to be delayed or, in the worst case, rejected.  In my view that is entirely understandable.

21.      Against the documents referred to by the Minister are two documents which pre-date Mr Abraham’s application for refugee status and also the issue of his Sudanese passport.  They are his birth certificate and an international student identity card.  His birth certificate appears to have been issued on 20 January 1980 and his identity card on 1 September 1990.  However, the Minister has raised some concerns about those two documents. 

22.      Mr Abraham’s birth certificate was examined by the Document Examination Unit.  The examiner expressed concern about the document’s authenticity; and in particular that it is a laser printed document; the date stamp on it has misspelt the word Health; and that there is a tear mark across the bottom of the page indicating that it may have come from a larger sheet of paper.  The examiner also noted that it was a well known fact that documents from the region of origin of the birth certificate are easily obtained through bribery and corruption.  Nevertheless, the examiner concluded that the document may in fact be genuine.  There may be some legitimate reason behind the discrepancies.  He concluded that without confirmation of authenticity from the issuing source, his examination was inconclusive.

23.      The second document which bears a 1969 birth date is Mr Abraham’s student identity card.  It appears that the card was issued on 1 September 1990.  According to Mr Abraham, he obtained the identity card in Khartoum when he was selected to go to London as a representative of the Christian church, to enable him to continue religious studies.  Mr Abraham in fact did not go to London as he was advised that he might not be able to return to Sudan because of the war.  The Minister raised questions about the identity card particularly because the name on the card indicates that it is issued to James Ben Luclia.  The name Abraham is absent and, according to Mr Abraham, his second family name has been misspelt.  However, Mr Abraham pointed out that he signed the reverse side of that card and the signature clearly indicates that the second family name is Ludia.  Furthermore, the identity card incorporates a photograph of the person to whom it was issued and, having seen and observed Mr Abraham at the hearing, I have no doubt that the person in the photograph is Mr Abraham.  I also have no reason to doubt the authenticity of the student identity card which is laminated, the lamination being worn and discoloured, indicating that it was prepared some time in the distant past.

24.      In my opinion, the birth certificate and the student identity card, both of which were issued many years before Mr Abraham found it necessary to flee from Sudan, strongly suggest that Mr Abraham was born in 1969. 

DESIRABLE TO AMEND FOR ANY REASON

25.      In Re James Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 at paragraph 11, Deputy President Purvis said that the words desirable for any reason imply a positive aspiration, in that the context of s 47 of the Act, appearing as it does in Division V, suggests that desirable amendments should be only those intended to assist persons for whose benefit the Act was enacted and which did not impede the proper and efficient administration of the Act. He concluded:

It is desirable that applications, which appear reasonable, objectively, should be granted unless strong administrative arguments against the same can be demonstrated.

26.      In Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 9 AAR 215, Senior Member McMahon said, when deciding that it was desirable for a citizenship certificate to be amended in order to correct a date of birth:

…desirable implies a positive aspiration. If something is desirable, it is more than something that is merely advisable.  It is something worthy of achievement towards which one should actively aim. …

It is desirable that applications which appear reasonable objectively should be granted unless strong administrative arguments against them can be demonstrated. …

Once that error has been proven, it can not be said to be desirable that it should remain unaltered…

27.      In Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373 Senior Member Beddoe agreed with and adopted the reasons of Senior Member McMahon in Re Celik.

28.      In my opinion, the evidence points to the fact that the birth date of 01/01/1965 on Mr Abraham’s citizenship certificate is incorrect.  In addition to the fact that there are two documents which pre-date the issue of Mr Abraham’s passport and which bear a 1969 birth date, the letter from All Saints Cathedral in Cairo (an undated document) records that Mr Abraham commenced primary school education in 1975.  That accords with Mr Abraham’s evidence.  If in fact Mr Abraham was born in 1965, it would mean that his first schooling commenced when he was ten years old.  However, if he was in fact born in 1969, he would have been six years of age when commencing primary school, which is more likely.  In my view, that supports Mr Abraham’s claim that he was born in 1969.  I am also influenced by the fact that on 3 February 2005 Mr Abraham made a Statutory Declaration declaring that his birth date on his visa was incorrect, explaining that his brother-in-law made the application on his behalf and that he did not have Mr Abraham’s birth certificate with him at that time.  Given the penalties which attach to a person who wilfully makes false statement in a Statutory Declaration, it is unlikely that Mr Abraham has deliberately made a false statement thereby exposing himself to a substantial fine or even a term of imprisonment.  Finally, as Mr Abraham pointed out in evidence, if his correct birth date is 1969 rather than 1965, he will be required to remain in the workforce in Australia for a further four years before becoming eligible for the age pension.  There are no obvious advantages to be gained by Mr Abraham in claiming he was born in 1969.  In fact, he will incur some detriment if his claim is successful.  On the other hand, there is advantage to the Commonwealth Government should Mr Abraham’s claim be accepted.

CONCLUSION

29.      In my view, the evidence points to the fact that the date of birth on Mr Abraham’s citizenship certificate is incorrect and that his contention that he was born in 1969 is correct.  Had the Minister correctly followed the guidelines set out in paragraph 7.2.1 of the Instructions for the grant of Australian Citizenship Certificates, the date of birth shown on Mr Abraham’s birth certificate would have been entered on the citizenship certificate.  There was no evidence of an amended date of birth, but rather, simply a different date of birth on his passport and documents completed following receipt of that passport.  It is only where a birth certificate cannot be produced that the Minister should enter the date of birth shown on the passport or travel documents on the citizenship certificate.  Even though the Minister had some concerns about the authenticity of the birth certificate, the report by the Document Examination Unit, although expressing some questions about its authenticity, indicated that it may in fact be genuine.  In my view, the fact that the birth certificate correctly states the date of birth to be 20 February 1969 is strongly supported by the date of birth on Mr Abraham’s student identity card.  The fact that it is laminated and incorporates Mr Abraham’s photograph; and it is not a document which would easily lend itself to more recent falsification, supports its authenticity.  Together, those two documents support Mr Abraham’s claim about his birth date and the fact that the Minister ought to have followed the guidelines set out at paragraph 7.2.1 of the Instructions.

30.      I am also of the view that it is desirable that Mr Abraham’s citizenship certificate be amended to reflect the correct birth date being 20 February 1969.  It follows that Mr Abraham’s application should succeed.  The decision made by a delegate of the Minister on 2 December 2005 should be set aside and the matter remitted to the Minister with a direction that Mr Abraham’s Certificate of Australian Citizenship be amended to show his date of birth as 20 February 1969.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  13 February 2007

Date of Decision:  28 February 2007

Advocate for the applicant:          Mr M. R. White, Ballarat Central Church of Christ

Solicitor for the respondent:         Mr T. Etuati, Clayton Utz Lawyers