AHH v NSW Registry of Births, Deaths and Marriages

[2011] NSWADT 267

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AHH v NSW Registry of Births, Deaths and Marriages [2011] NSWADT 267
Hearing dates:	On the papers
Decision date:	16 November 2011
Jurisdiction:	General Division
Before:	P Molony, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Births, Deaths and Marriages Registration - birth certificate - three changes of name already registered - whether further change warrants registration
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Births, Deaths and Marriages Registration Act 1995
Cases Cited:	Ezekeil v Registrar of Births, Deaths and Marriages
Category:	Principal judgment
Parties:	AHH (Applicant) NSW Registry of Births, Deaths and Marriages (Respondent)
Representation:	AHH (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	113196

REASONS FOR DECISION

Introduction

1. AHH has applied to review a decision of the Registrar of the Registry of Births, Deaths and Marriages (the agency) to refuse his application to register a change of name on his birth certificate from AHH to Hormis Daniel. That decision was affirmed on internal review on 2 June 2011.

1. Essentially, the request was refused on the basis that this was AHH' fourth request for a change of the name on his birth certificate, and, in those circumstances, the agency was not satisfied that the proposed change warranted registration. AHH' previous changes of name were registered -

• In NSW on 8 July 1999 from Hormis Daniel to Thomas Daniels.
• In NSW on 19 October 2000 from Thomas Daniels to Tony Adam.
• In NSW on 22 November 2001 from Thomas Daniels to AHH.

1. AHH filed an application to review the decision with the Tribunal on 22 July 2011. Section 56 of the Births, Deaths and Marriages Registration Act 1995 provides a right to seek such a review from the Tribunal. When read with s 38 of the Administrative Decisions Tribunal Act 1997 it confers jurisdiction on the Tribunal to hear and determine AHH' review

1. The matter came before the President for directions on 23 August 2011. He made directions for the filing of relevant material by the parties, and determined that the review would then be conducted on the papers.

1. The matter has been referred to me to determine on the papers. The material to be considered in making the determination consists of:

• Mr AHH' application to for review of a reviewable decision filed 22 July 2011 with attachments, including the internal review decision of 2 June 2011.
• The s 58 documents filed by the agency.
• A letter dated 30 August 2011 from Mr AHH.
• The agency's submissions filed 14 September 2011.

1. I am satisfied that the issues for determination can be adequately determined on the papers, in the absence of the parties.

The Legislation

1. Part 5 of Division 4 of the Births, Deaths and Marriages Registration Act 1995 is concerned with the registration of changes of names on birth certificates. S 26 provides that a persons name may be changed by registration. S 27 makes provision for the making of applications for change by adults. S 29B establishes restriction on the number of changes a person can request. It provides -

The Registrar is not to register a change of name of a person on application made under this Act if the Registrar is aware that:

(a) a change of the person's name has been registered (whether in this State or in another State) within the period of 12 months immediately preceding the date of the application, or

(b) 3 or more changes of the person's name have been registered (whether in this State or in another State).

1. Section 27(2) then makes provision for exceptions to that general rule. It provides -

(2) The Registrar may register a change of name of a person despite any restriction imposed by section 27 (b) or 28 (1) (b) as to the period for which the person must be resident in the State, or any restriction imposed by section 29B, if:

(a) the Registrar is satisfied that the reason for the proposed change of name warrants the registration of the change of name, or

(b) without limiting paragraph (a), the Registrar is satisfied that the proposed change of name is sought for the protection of the person, the person's children or anyone else associated with the person, or

(c) the proposed change of name is because of the marriage of the person, or

(d) the District Court has approved the proposed change of name on application under section 28 (4).

Consideration

1. Mr AHH has always been consistent in the reasons he advances for wanting to again change his name on his birth certificate: this time by reverting to his birth name, Hormis Daniel. In his application for internal review he explained -

"1. I was born in Irak and I came to Sydney in 1968 as a 10 year old.

2. It is true that over a period of 7 years, I sought to change my name three times which I was legally allowed to do. I did this because of constant hounding and harassment from my ex-partner. My last change of name application was in 2001.

3. I have been on my own ever since.

4. My elderly parents who live in Sydney are constantly asking why 'I have not married again'. They have through their family network in Irak have found a woman for me to marry.

5. This particular person has been known to me since I was a child.

6. It is an 'arranged marriage' per se and for many Australian is somewhat of a foreign idea where our parents arrange for bridegroom to marry their respective son.

7. 1 am convinced that this `arranged marriage' will work for me.

8. I need this change of name application exemption on the following grounds:

a) My immediate family who resides in Irak still know me by my 'Daniel' surname. They have no idea as to the reasons why I changed my name three times over the years.

b) For me to return to Irak to marry this person under another name which is not what people know me by will cause a lot of anxiety and heartache to my immediate family. Not to mention the gossiping that people will engage in not knowing the full facts 'such and such is here but with another name, what is going on, why is he doing that?'.

c) I also fear that as I am planning to marry in Irak and then sponsor my wife, there will be a lot of complications in getting all the relevant paperwork and for the relevant Iraki authorities to understand my reasons why I did what I did over a three year period.

9. I am determined that this arranged marriage will work and that my spouse to be and I will have many years of happiness in Sydney.

10, Furthermore, in many respects it is somewhat of an embarrassment for my family to have a son who remains single after a failed marriage. The family unit within Iraki society is very important and single persons are frowned upon in the "internal climate owing to the political and religious upheaval."

1. In his submission to the Tribunal he wrote -

I was born Hormis Daniels and I am known as Hormis Daniels in Iraq. I do not want to have problems when I travel to Iraq carrying the name Mr AHH.

1. The material establishes that three changes of Mr AHH' name as it appears on his birth certificate have been registered in NSW. As a consequence s 29B provides that a further change of name shall not be registered unless it satisfies one of the exceptions in s 27(2).

1. In Mr AHH' case there is no suggestion that the exceptions in s 27(2)(b) or (d) apply.

1. With respect to s 27(2)(a) the Registrar, and the Tribunal on review, must be satisfied that the proposed change of name warrants registration. In Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137 I said of these provisions, at [14] (typographical errors omitted) -

In the statutory context of the Births, Deaths and Marriages Registration Act 1995, I accept that an applicant who has reached the statutory cap on the number of name changes set by s 29B most point to some good reason or ground warranting a further change to the register, before the Registrar can exercise the discretion to allow a further change. I agree with the Registrar's decision that personal preference, likes or dislikes, are insufficient to enliven the discretion. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory.

1. I remain of that view.

1. At the heart of Mr AHH' reasons for seeking a further change of name is his desire to avoid the inconvenience and potential embarrassment of having to explain his change of name to people in his country of birth, and having to satisfy them, and the authorities there, that he is the person he says he is. As the respondent pointed out Mr AHH has not provided any evidence, aside from assertions, that he will not be able to travel to and from Iraq or marry his intended, if his fourth change of name is not registered by the Registrar. He does not explain why action cannot be taken before he leaves Australia for Iraq to alert those he will deal with there to his change of name, thereby obviating - in part at least - the consequences he fears. He does not provide any evidence, whether culturally based or otherwise, that points to him being unable to travel in Iraq or marry as he wishes without his name being changed.

1. I agree with the agency that the reasons advanced by Mr AHH for seeking a further change of name do not warrant registration. Essentially, they consist of expressions of trepidation about the potential difficulties he may face when travelling to Iraq to marry under his present name, without providing any evidence that those apprehensions are well founded.

1. In submissions the agency also addressed the exception in s 27(2)(c): allowing a change of name "because of the marriage of the person". I agree with the agency that for that exception to apply the applicant must have in fact married, and not merely be proposing or contemplating doing so. To hold otherwise would create an exception in relation to proposed marriages: a situation not contemplated by the sub-section.

1. It follows that I consider that the agency made the correct and preferable decision when it refused Mr AHH' request to register a further change of name.

1. The Tribunal affirms that decision.

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Decision last updated: 16 November 2011