Braham and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 539

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL        N 2004/112

GENERAL ADMINISTRATIVE DIVISION

Re: Ahmed Braham

Applicant

And: Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             27 May 2004

Place:            Sydney

Decision:The application for an extension of time is refused.

(sgd) P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

Australian citizenship – request to amend certificate of Australian citizenship refused – application to review decision refusing amendment made out of time – respondent withholds consent to late application - application for extension of time – discretion to extend time not exercised

Administrative Appeals Tribunal Act 1975 s.29
Australian Citizenship Act 1948 s.47

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Comcare v A’Hearn (1993) 119 ALR 85
Zizza v Commissioner of Taxation 99 ATC 4,711
Commissioner of Taxation v Brown 99 ATC 4,852

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

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      Ahmed Braham has applied for an extension of time to lodge an application to the Administrative Appeals Tribunal for review of a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.

2.      The delegate decided not to agree to Mr Braham’s request that his certificate of Australian citizenship be amended. In an undated request (exhibit RD5), Mr Braham stated that the date of birth shown in his citizenship certificate, 3 December 1962, was incorrect and should be 3 December 1960. Mr Braham, who was born in Tunisia, provided the Department of Immigration and Multicultural and Indigenous Affairs with supporting documentation. He enclosed a copy of his birth certificate (exhibit RD8) which disclosed his date of birth as 3 December 1960.  A copy of his Tunisian passport (exhibit RD10) also disclosed his date of birth as 3 December 1960.

3. By letter dated 31 May 2003 (exhibit RD11), the delegate informed Mr Braham that she was not satisfied it was desirable to exercise the discretion under s.47 of the Australian Citizenship Act 1948 to amend the date of birth in his certificate of Australian citizenship from 3 December 1962 to 3 December 1960.  The delegate stated that the following information was taken into account in assessing Mr Braham’s request:

·The departmental file for your Australian Citizenship Application (in which you have written your date of birth as 3/12/1962)

·The fact that a DIMIA officer confirmed the DOB on your application form with a passport and visa which you presented at the time of your application

·An extract from the register of births (French version) which was issued on 22/08/1995

·Your certificate of Australian Citizenship

·Your current Tunisian passport

·Your current Australian passport

·The Australian Citizenship Act.

At the time of your Citizenship application you provided a passport and visa using the date of birth 03/12/1962. This was the date of birth that you recorded on your application form.

You have since provided some documents using the date of birth 03/12/1960, however these are only recently issued documents, and date after the Citizenship decision was made.  The birth register is the one document issued prior to the Citizenship decision (was issued in 1995), and as such it is curious that this was not presented with the Citizenship application.

I have considered all the documents your [sic] provided and in your file and have established that no departmental error was made in your application for Australian Citizenship in 1997.  As a delegate of the Minister, I am not satisfied that it is desirable to amend your date of birth.  Your request has therefore been refused.

…

You are entitled to make an application to the Administrative Appeals Tribunal within 28 days of receipt of this letter, for a review of this decision. …

4. On 28 January 2004 Mr Braham applied to the tribunal for review of the respondent’s decision dated 31 May 2003. Under s.29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) applications are required to be lodged with the tribunal within 28 days of an applicant’s receiving the relevant document setting out the terms of the decision. As the application was late, the tribunal asked whether the respondent consented to an extension of time. By notice dated 24 February 2004, the respondent opposed the extension of time because there had not been an acceptable explanation for the seven month delay and the merits of the substantive application were not considered to be strong. The tribunal has a discretion in s.29(7) of the AAT Act to extend the time for an applicant to lodge an application.

5.      At the hearing of his application for an extension of time, Mr Braham was not represented, although he was assisted by his wife on the first day of hearing.  Ms L Stone, solicitor, appeared for the respondent.

6.      In evidence Mr Braham said he first arrived in Australia in 1988 on a tourist visa. He married in January 1992 while residing in Australia and obtained permanent residence.

7.      Mr Braham was granted his certificate of Australian citizenship on 15 January 1997 (RD3). He said that he had changed his name by deed poll to Ahmed Braham, prior to the grant of citizenship. When he originally entered Australia, his surname was derived from his maternal grandfather.  He had adopted that surname because his mother was divorced before he was born.  To correct his surname to his father’s surname, he has since changed his surname again.  His current Tunisian passport (RD10), which was issued on 28 January 2003, now discloses his surname as Ben Braham.

8.      Mr Braham became aware that his Australian citizenship certificate showed the incorrect date of birth, 3 December 1962, around the time that he applied for his Australian passport.  He decided not to have the date of birth corrected at that time because he thought any action taken would delay the issuing of his Australian passport and hence his journey to see his mother who was then gravely ill. His Australian passport was issued on 8 April 1997 (RD4) and shortly later he left for Tunisia.

9.      Mr Braham’s reason for requesting the change to show his date of birth as 3 December 1960 in his citizenship certificate is to avoid further problems with the Tunisian immigration authorities. His Tunisian passport shows his date of birth as 3 December 1960. He said that he travels to Tunisia frequently, because his wife and son live there with his grandmother. He has experienced difficulties with the Tunisian authorities because they have asked him to explain the different dates of birth in his Australian and Tunisian passports. 

10.     From the delegate’s statement of decision on 31 May 2003, it appears that the Department was provided with a passport and visa in support of the application for citizenship.  These documents showed the applicant’s date of birth as 3 December 1962.  The relevant application form for citizenship also disclosed that date. Mr Braham disputed the delegate’s statement (RD11). He insisted that all the relevant documents submitted for his citizenship, including his Tunisian passport and permanent residence visa, would have shown his date of birth as 3 December 1960.

11.     Mr Braham said that he did not understand the respondent’s letter of 31 May 2003 notifying him that his request to change his date of birth on his citizenship certificate had been refused. He went overseas on 23 August 2003, three months after receiving notice of the adverse decision, and returned to Australia on 16 December 2003. He said that, prior to going overseas, he had been speaking to someone at the Department, sometimes daily, about his attempt to have his date of birth changed. On his return to Australia in December 2003, he again spoke with the Department. 

12.     Mr Braham said that it was at some point before 2000 that he made his first approach to the Department about having the date of birth changed. In the following years, he said he had a number of discussions with departmental officers about the request and he actually lodged a formal application for such a change to be made.  No record of such an application was provided to the tribunal.

13.     At the conclusion of the first day’s hearing, the tribunal requested the respondent to undertake further searches in an effort to find the departmental file relating to Mr Braham’s citizenship application. The applicant was asked to locate his Tunisian passport that was submitted with the application for citizenship.  Unfortunately the respondent was unable to locate any documentation lodged or sighted in respect of the application for citizenship.  An affidavit affirmed on 28 April 2004 by Louise Stone, the solicitor handling the matter for the respondent, stated that she had been informed by an officer at the Department that attempts to locate the files relating to Mr Braham’s application for Australian citizenship had been unsuccessful but there was no record of them having been destroyed (exhibit R2). Ms Stone told the tribunal that the earliest record of an enquiry concerning a change to the applicant’s date of birth was on 23 April 2002 and the request was refused in July 2002. There was no record of any documents having been lodged. Mr Braham disputed this and maintained he made an earlier approach to the Department and had provided papers that supported his application. Ms Stone told the tribunal that the applicant was next recorded as requesting a change to his citizenship certificate on 12 May 2003.

14.     Mr Braham provided the tribunal a copy of an extract from his Tunisian passport that was issued on 26 August 1997 (exhibit A1). The passport recorded 3 December 1960 as his date of birth. Unfortunately, this passport could not have been the passport submitted with his application for Australian citizenship because citizenship had been granted on 15 January 1997.   

15. Guiding principles for the tribunal to take into account when considering whether to exercise the discretion in s.29(7) are found in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The Tribunal is mindful of the Full Court’s caution in Zizza v Commissioner of Taxation 99 ATC 4,711 that the principles are a guide only and the summary in Hunter Valley Developments ought not be regarded as exhaustive or complete. 

16.     Ms Stone submitted that the applicant has not provided an acceptable explanation for the delay of approximately seven months before lodging his application to the tribunal. I note that prima facie, proceedings should be commenced within the prescribed period and although an acceptable explanation for the delay is not a precondition for success, it is expected that normally such an explanation will be given (Comcare v A’Hearn (1993) 119 ALR 85). Mr Braham’s evidence on this point was that he did not understand the letter from the respondent refusing his application to change the citizenship certificate. Despite having many discussions with departmental officials regarding the decision, Mr Braham said he was unaware of his right to appeal to the tribunal. He did not find out about his appeal rights until he saw his wife in Tunisia and she explained the respondent’s letter to him. However, Mr Braham did not file his application until 28 January 2004, some six weeks after his return. His evidence explaining this period of delay was not clear. He discussed the issue with a friend’s solicitor and was again told about the possibility of review by the tribunal but he did not act. I am satisfied that he rested on his rights during this period.

17.     Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension (Hunter Valley Developments). The respondent’s evidence regarding the whereabouts of its file relating to Mr Braham’s initial application for citizenship was simply that it cannot be found, although there is no evidence that it has been destroyed. If the extension of time were granted, I consider that the missing file disadvantages the applicant more than the respondent. The file had been available to the delegate at the time of her decision in May 2003. She referred to its contents in reaching that decision. Mr Braham disputes the delegate’s statement that the contents of the file referred to his date of birth as 3 December 1962, and without the file he is hampered in making good his assertion. In deciding whether it is fair and equitable to exercise the discretion in s.29(7) of the AAT Act this factor of prejudice is not one that weighs heavily in the respondent’s favour.

18.     As to the merits of the application for review, I am mindful that the relevant consideration is whether Mr Braham can show an arguable case on the merits, taking his case at its highest (Commissioner of Taxation v Brown 99 ATC 4,852). Section 47(1) of the Australian Citizenship Act 1948 (the Act) gives the Minister a discretion whether to amend an certificate of Australian citizenship as it provides that “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.”  In Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 9 AAR 215, a case concerning a certificate of citizenship that contained an incorrect date of birth, Senior Member McMahon interpreted s.47(1) as follows:

… 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. (at 223)

19.     The respondent contended that I should give due weight to the delegate’s statement (RD11) that at the time of the application for citizenship, the Department confirmed that the date of birth in the application was the same as that in the passport and visa that Mr Braham had submitted.  Mr Braham’s evidence was that he gave the department an extract from his birth certificate (RD8) at the time of applying for Australian citizenship.  The extract is dated 22 August 1995 and notes his date of birth as 3 December 1960 at Tunis.  In my view, if the birth certificate had been available for consideration at the time of the application, the difference in the dates of birth would have been obvious, as the respondent submitted. I note the delegate’s statement that it was curious that the birth certificate was issued in August 1995, prior to the application for citizenship, but was not submitted with the application, and thus I accept that the birth certificate must not have been provided at the time of the citizenship application.  Further, I am satisfied that Mr Braham’s current Tunisian passport and his Tunisian identity card, both of which have 3 December 1960 as his date of birth, were not submitted at the time of his applying for citizenship because both documents came into existence subsequently.

20. It is not appropriate in an application for an extension of time to conduct a trial of the merits of the substantive case. After considering the material before me, however, I am not satisfied that the applicant’s case at its highest would establish that it is desirable for an amendment to be made to his certificate of Australian citizenship. That is, I do not consider that his case for a favourable exercise of the discretion in s.47(1) has merit. I am of this view because the material suggests that it is unlikely that Mr Braham would succeed in demonstrating that there has been an error made in his citizenship certificate. Moreover, his Tunisian passport has been issued in the surname Ben Braham and the forename Ahmed ben Khemais. On his Australian citizenship certificate and his Australian passport, his surname is Braham and his forename Ahmed. It is probable that difficulties with immigration authorities would arise not only from the different dates of birth but also the discrepancy in the names in the passports. Given these additional discrepancies in primary documents of identification, I am not satisfied that Mr Braham would succeed in demonstrating the desirability of making a change only to his date of birth on his citizenship certificate.

21.     After balancing the interests of the parties and noting the lack of a reasonable explanation for the delay after his wife explained the respondent’s decision to him, and in particular that there is little prospect of success in the substantive application, I have decided that in the circumstances the fair and equitable outcome is not to exercise the discretion to extend time. 

22.     The application for an extension to commence an appeal to the tribunal is refused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member

Signed:         .....................................................................................
  Associate

Hearing dates  15 March and 28 April 2004
Decision  27 May 2004
Applicant  Self-represented 

Respondent’s representative         L Stone, solicitor