Fung and Department of Immigration and Multicultural Affairs

[2000] AATA 910

DECISION AND REASONS FOR DECISION [2000] AATA 910

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1784

GENERAL ADMINISTRATIVE  DIVISION       )      
           Re      JAMES FUNG         
  Applicant

And    DEPARTMENT OF IMMIGRATION & MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       The Hon Mr R N J Purvis, QC, Deputy President         

Date18 October 2000

PlaceSydney

Decision      The Tribunal sets aside the decision under review and directs that the relevant certificate of citizenship be amended to show the year of birth of the Applicant as 1940.          
  …………………………….
  R N J Purvis
  Deputy President
CATCHWORDS

IMMIGRATION – amendment of date of birth as shown on citizenship certificate – statutory declaration made by father – whether desirable to amend certificate – lies and deceit of father – under the influence and direction of father – evidence – no birth certificate – whether amendment would impede the proper and efficient administration of the Act

The Australian citizenship Act 1948
Nationality and Citizenship Act 1948
Citizenship Act 1969

Re Celik and Department of Immigration, Local government and Ethnic Affairs 17 ALD 699

THE APPLICATION:

1. James Yuk Chee Fung, as he is shown on his driving licence (hereinafter referred to as "the Applicant"), by his application lodged on 23 November 1999 seeks review of a decision made by a delegate of the Minister of the Department of Immigration and Multicultural Affairs ("the Respondent") on 2 November 1999. The said decision was to reject an application to have the Applicant's date of birth as shown on his certificate of citizenship, amended.

2. The issue for decision in this application is whether pursuant to section 47 of the Australian Citizenship Act 1948 it is desirable for the certificate of Australian citizenship of the Applicant to be amended to show his date of birth as 15 June 1940 in lieu of 15 June 1942 as it is now shown.

3. In her reasons for decision the delegate of the Respondent stated:

   "…
   I have examined your original application for citizenship and also taken into account the Statutory Declaration made by your father in 1963 and noted the various points you have made. However, apart from the statutory declaration made by your father there is no real evidence to confirm your actual date of birth. Not only that, the Statutory Declaration on which you have based your claims only states what your parents thought were the current ages of the children at the time, it does not actually confirm the children's actual date of birth. As there is really no evidence strong enough to support your claims and no departmental error was considered to have been made when the original certificate was issued, your request to have your certificate amended has been rejected.
   …" (T1, page 6)

The hearing:

1. At the hearing of this application the Applicant appeared on his own behalf, the Respondent being represented by Ms Paula Chadderton, a departmental advocate.

2. There was placed in evidence the documents and supplementary documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and marked T1 to T18, S1 to S9. Other written material was tendered by the parties and admitted into evidence namely:
   Exhibit No.   Description  Date  
   A        Photocopy of Mr Fung's Drivers Licence.  
   B        Record held in respect of the Applicant of Commonwealth Director of Migration produced by National Archives of Australia.                 
   T1–T18 and S1 – S9 Formal Documents lodged pursuant to Section 37 Of the Administrative Appeals Tribunal Act 1975.  

3. Bundle of documents produced to Respondent by Australian National Archives.              

4. Chronology of events submitted by Respondent.  

5. Copy of Applicant's application for passport.     21 August 1990       

6. Bundle of incoming and outgoing passenger cards.                 

1. The Applicant gave oral evidence upon which he was cross examined.
   Relevant legislation and instructions:

2. The legislation relevant to this application is contained in the Australian Citizenship Act 1948 ("the Act"). Section 47 of the Act provides in subsection 1 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. A certificate that has been so amended is to be of effect as so amended.

3. For the purposes of section 47 a certificate of Australian citizenship includes a certificate of naturalisation issued under an Act even if repealed by the Act or by any other Act or under a state Act or under an Ordnance of a Territory. A certificate of Australian citizenship is defined by section 5 of the Act to mean a certificate of Australian citizenship granted under the Act and includes a certificate of naturalisation or a certificate of registration granted under the Nationality and Citizenship Act 1948 or under that Act as amended before the commencement of section 22 of the Citizenship Act 1969. Thus under section 5(1) a certificate of Australian Citizenship is both a certificate of Australian citizenship granted under the provisions of the Act on and after 1 May 1970 and the predecessors to a certificate of Australian citizenship, that is, certificates of naturalisation and certificates of registration which were granted on and after 26 January 1949 and before 1 May 1970. The certificate the subject of the present application is a certificate of Australian citizenship within the meaning of the Act.

4. Australian citizenship instructions were issued on 12 February 1999 and they are to be used as a guide in applying the relevant legislation to particular circumstances. Instruction 6.2.1 details the matters that are to be taken into consideration when ascertaining material that is to be set forth in a certificate. Thus it makes provision for the date of birth to be consistent with a birth certificate but where such a certificate is not available then the date of birth may be that as shown on a passport or travel document used when the person entered Australia. Where there is a difference between documents than the matter is to be referred to a designated source. Instruction 6.2.2 provides that where an applicant produces acceptable evidence of a name change or an amended date of birth or where a departmental record has been officially altered to show these changes then a person may apply for and be granted a certificate of Australian citizenship as so amended. Instruction 6.3.5 provides:

   "As a matter of policy neither the issue of a replacement certificate nor amendment of a certificate should alter a record which accurately reflects a person's details at the time of application. Any person seeking changes is to be advised that:

• A citizenship certificate is the official record that the person or persons whose name(s) and date(s) of birth appear(s) on it acquired citizenship on the date shown; and

• They will have to find other means, if necessary, to convince a third party (including another government agency) that the details on the certificate are now incorrect. Such evidence cannot be provided through the citizenship process or records.

  …"

1. Instruction 6.4.1 provides:

   "Section 47 of the Act provides a broad discretion to the minister to amend certificates where he or she is satisfied it is desirable to do so for any reason. Current policy is to follow the guidelines approved by the then minister in November 1982 where the minister or his or her delegate may normally amend a citizenship certificate pursuant to section 47:

• To correct a departmental error which he/she is satisfied was made when the original certificate was issued; or subsequently;

• To include or delete the names of children."

1. As was stated in Re Celik and Department of Immigration, Local government and Ethnic Affairs 17 ALD 699 the fact that an error was made by an applicant does not remove a matter from the guidelines and within such guidelines a request for amendment may be seen as a request to correct a departmental error. The Tribunal is not however bound by the terms of departmental guidelines or instructions but will take them into consideration when arriving at its decision. The question for the Tribunal is whether it is satisfied that it is desirable for any reason that the Applicant's certificate of Australian citizenship should be amended. The words "desirable for any reason" under section 47 of the Act imply a positive aspiration in that the context of section 47 appearing as it does in "division V – miscellaneous" of the Act suggests that desirable amendments should be only those intended to assist persons for whose benefit the Act was enacted which did not at the time impede the proper and efficient administration of the Act. In considering an application for amendment the minister and Tribunal should be guided by both legislative intent and good administrative practice. It is desirable that applications, which appear reasonable, objectively, should be granted unless strong administrative arguments against the same can be demonstrated. A balance is to be struck between the competing criteria.
   The factual situation:

2. The Applicant was born in Macau but, on account of the political and social situation then existing, the event was not registered. On the conclusion of hostilities the Applicant's parents, his father's concubine and the children of his mother and the concubine by the father moved to mainland China where the Applicant began to attend a United States missionary school. He said that this was in 1946. It was only at about this time that the Applicant became aware of there being in effect two families living in the one premises with the one father.

3. Following upon the communist takeover of government in Mainland China the Applicant's family was subject to discrimination on account of its economic wellbeing. A decision was made by the father to endeavour to bring his family to Australia. The family seemingly moved back to Macau prior to travelling into Hong Kong and then to Australia. The father was not able to travel with the intention of residing in Australia with two wives and so he resolved to "combine" the families whereby the concubine and all of the children were detailed as children of the father and the Applicant's mother. Two of the children of the concubine were older than the Applicant. It is maintained by him that the father falsely noted on migration documentation the years of birth of the Applicant and others of the children as well as that of the concubine in order to disclose an ordered family and hierarchy of children. The change initially occurred when the family returned to Macau preparatory to its travelling to Australia.

4. At the time of entry into Australia on 9 July 1952 the "family" then travelling with the father was declared by him as including the Applicant whose date of birth was noted as 15 June 1942. In a listing of the family made under the hand of the then Secretary of the department in March 1952 reference no. 52/1408 the family is listed as follows:

NAME SEX     PLACE OF BIRTH     DATE OF BIRTH       
  CHINA           
Fung Hin Cheong       M        Kwong Tung Province 10 October 1900        
Wong Yee      F        Kwong Tung Province 5 February 1908        
Fung So Lan   F        Kwong Tung Province 18 June 1927 
Fung Yuk Kee M        Macau 7 September 1934     
Fung Lan Wai F        Macau 29 July 1937   
Fung Lan Ching        F        Macau 20 December 1939    
Fung Yuk Kou M        Macau 15 June 1940 
Fung Yuk Chi  M        Macau 15 June 1942 
Fung Yuk Ming          M        Macau 8 July 1944     
Fung Yuk Hung         M        Macau 14 May 1948  

1. It is noted that Fung So Lan the concubine is noted as having been born in 1927, her daughter Fung Lan Wai being born only ten years later. The Applicant (Fung Yuk Chi) who is shown as having been born on 15 June 1942.  If his year of birth had been shown as 1940 then this would have conflicted with the dates of birth of two other children, one of the wife and one of the concubine.

2. Initially, after its entry into Australia, the "family" lived in the same house at Coogee moving to Granville and later to Bankstown where a home was purchased by the father. The Applicant said that the members of the "family" were told to safeguard their "false identity" in order that they could remain in this country. They were, it was said by the Applicant, at that time unable to obtain permanent residency, their visas having to be regularly renewed. It was, he said, for "our survival" for the Applicant and other members of the "family" to maintain the falsity as to the year of his birth.

3. However by 1957 the Applicant was seeking employment having, according to a departmental document, failed in his intermediate certificate exams. In order for him to enhance his employment prospects he needed a drivers licence. The father relented and agreed to allow the Applicant to state his year of birth as being 1940. A licence was obtained showing date of birth as 15 June 1940.

4. The Applicant in 1961 was required to register under the Aliens Act and on 3 April 1961 in his documentation form noted the year of his birth as 15 June 1940. The year as stated by the Applicant in the form was changed from 15 June 1940 to 15 June 1942 by a person unknown. The Applicant denied making the alteration himself. The inference is open to the Tribunal to find that the alteration was made by a departmental officer. The Tribunal does so find.

5. In 1963 the migration status of the family and especially the father was subject to an investigation by the immigration authorities. The possibility of deportation arose. The review related to entry irregularities. On 1 August 1963 a statement was taken from each of the father, the mother and the concubine. In a statutory declaration made by the father he detailed the "family" persons nominated for entry into Australia as:
   NAME IN ENGLISH   RELATIONSHIP       
   Wong Yee      Wife aged approximately 45  
   So Lan Fung   De facto wife of 27 years       
   Yuk Kee Fung          Son aged approximately 29   
   Lan Wai Fung Daughter aged approximately 26      
   Lan Ching Fung        Daughter aged approximately 25      
   Yuk Kou Fung Son aged approximately 24   
   Yuk Chee Fung         Son aged approximately 23   
   Yuk Ming Fung          Son aged approximately 22   
   Yuk Hung Fung         Son aged approximately 16   

1. If the above listing is correct the Applicant would then have been born in "approximately" 1940.

2. In her statutory declaration the concubine, the de facto wife of 27 years, then shown as residing at the same address as the father detailed her "nominated persons" as:

   Lan Wai Fung, Daughter aged approximately 26
   Yuk Kou Fung, Son aged approximately 24
   Yuk Ming Fung, Son aged approximately 22
   Yuk Hing Fung, Son aged approximately 16

3. The wife of the father, the mother of the Applicant, then shown as residing at an address different to the father stated in her statutory declaration that the relatives then residing in Australia were:

   Fung Hin Cheong, Husband
   Fuk Yuk Kee, Son
   Fung Lan Fong, Daughter
   Fung Lan Ching, Daughter
   Fung Yuk Chee, Son          (T8, page 24)

1. A comparison of the details recorded in March 1952 under the hand of the then secretary of the department as above and the particulars provided by the concubine in her statutory declaration show that whilst the Secretary noted the year of birth of Fung Yuk Kou as 1940 the concubine, the child's mother, stated it as 1939, the child Fung Yuk Ming noted by the secretary as 1944 and by the concubine as 1941 and Fung Yuk Hung noted by the secretary as 1948 and by the concubine mother as 1947.

2. Fung So Lan, the concubine, is shown in the secretary's document as being born in 1927, her daughter Fung Lan Wai as being born in 1937 when her mother was ten years of age. The son of Fung So Lan, Fung Yuk Ming, is shown by the secretary as being born in 1944 yet declared by the concubine mother as being approximately 22 years of age in 1963, that is, born in 1941.

3. In a memorandum of 26 March 1964 the Secretary in a decision not to grant naturalisation noted the above details but in relation to Fung So Lan and her date of birth inserted "or about 1919" and in relation to Fung Yuk Ming stated "or 9 August 1944". In a memorandum of 10 March 1964 from the Secretary of the department to the Commonwealth migration officer it was stated:

   "…
   Your report discloses that there has been deliberate fraud in this case and it is considered that apart from taking such corrective action that is open to us, the department will be doing itself a disservice in the eyes of the Chinese community if we were to ignore the circumstances in which the family secured entry. As the family has now been here close on 12 years it has been decided however that we cannot correct the situation by endeavouring to enforce their departure at this stage.
   …

   (4)       It is desired that Fung Hin Cheong, Wong Yee and Fung So Lan be called to your office and informed by a senior officer that the minister has considered their case, and wishes them to know that they are under grave reproach. Furthermore, while it is not proposed to terminate their temporary residence, they should realise that should they in due course wish to apply for permanent resident status and naturalisation, their applications will be considered in the light of the deliberate fraud which has been revealed recently in connection with original entry to Australia.

   (5)       The situation of the children of the two unions has been considered, but it has been accepted that their youth at the time of the actual deception precludes their being regarded as responsible parties to it."

1. On 24 September 1965 the Applicant in an "annual notification of address, occupation or employment and marital status" gave his date of birth as 16 June 1940 the latter year being circled and the figure "42" placed above the numerals. The alteration was made by a person unknown. The Applicant denied that he made the alteration. The inference is open that a departmental officer made the alteration and a finding is made accordingly.

2. It was in August 1966 that the Applicant made his application to become a naturalised Australian citizen. In the form of application for naturalisation the Applicant stated his date of birth as 15 June 1940. The Respondent in processing the application recorded the Applicant's date of birth initially as 15 June 1940 the year then being altered to 1942.

3. A family composition schedule certified on 11 August 1967 by the Applicant as being true stated his date and place of birth as 15 June 1940 at Macau. An internal documentation of 22 August 1967 bears witness to a deletion of an earlier indecipherable specified year and it being replaced with "42".

4. The certificate of naturalisation issued to the Applicant on 19 August 1968 related the date of birth has 15 June 1942. The Applicant said that in the course of a "very long interview" with an immigration officer he had said that he was born in 1940 not 1942.

5. Third party material produced by the Respondent at the hearing before the Tribunal does show a belief on the part of a radiologist in Hong Kong in 1952, a departmental officer in 1954 and a medical officer in 1958 that the Applicant's year of birth was 1942. On 24 June 1955 the Applicant in applying for a certificate of exemption from the provisions of the Immigration Act stated his then age as 13. This documentation is all consistent with the total situation wrongly propounded by the father.

6. The Applicant in a sponsorship application form of 15 October 1985, a notice of intended marriage form of 4 August 1986, a family migration sponsorship inquiry form made on 31 January 1988, when inquiring about an application made for his future wife to come to Australia, an application for an Australian passport made on 23 August 1990 and on incoming and outgoing passenger cards, in each instance stated his date of birth as 15 June 1942. This, he said, was done in order for the particulars to be consistent with the position then maintained in the records if the Respondent. There is logic and reasonableness associated with the explanation offered by the Applicant in regard to each of these documents and occasions. He stated that if he had sought to endeavour to create a new identity by giving his year of birth as 1940 when he wanted his new wife to come to Australia and when applying for a passport and inserting particulars on the cards that this would have led to difficulties and complications with immigration officers that he did not want to arise especially at those times. He said that these were occasions when he was forced as he put it "to tell a lie because of the circumstances". If he had given his year of birth as 1940 he would not, he felt, have obtained a passport, enabled his wife to come to Australia, or obtained social security.
   Submissions and decision:

1. The Applicant maintains that it was as a result of lies and deceit practiced by his father that the information provided to the immigration authorities was incorrect. He says that he was under the influence and direction of his father to maintain the lie and it was not until 1957 that he was first able to declare the correct year of his birth. The occasions when he noted his year of birth as 1942 were those following the grant of the certificate and when he was required to state information as to year of birth in aid of obtaining either assistance from the Respondent or exit and entry into Australia. Clearly by declaring a year of birth other than that recorded by the Respondent the Applicant would have been confronted with difficulties which may have seemed insurmountable.

2. The Applicant says that consequent upon the investigation of the irregularities perpetrated by his parents and the concubine at the time of their entry into Australia, departmental officers were aware of the falsity of the information provided and the fact of the year of birth of the Applicant being different to that evidenced by the records. The Applicant maintains that the present application is the only means available to him by which he may have his year of birth correctly recorded and that he is prejudiced by the year as officially noted being incorrect.

3. The factual situation earlier detailed shows that the Applicant was declared by his father to immigration authorities as being born in 1942. In 1957 he declared the year of his birth as 1940 in his application for a drivers licence and that detail has been maintained on the licence to the present time. In 1963 the father in his statutory declaration declared the Applicant as being of an age which would give his year of birth as "approximately" 1940. The concubine in her statutory declaration made at the same time as that of the father recorded the ages of her children as significantly different to those contained in departmental records made in 1952. The latter evidences the falsity of the earlier information. In 1966 and 1967 in his application for naturalisation and provision of family composition details the Applicant declared his year of birth as being 1940.

4. The Respondent contends that the Applicant has not succeeded in showing that there is an error in his certificate of citizenship. It is further contended that at the time he applied for Australian citizenship the Applicant's date of birth "was accepted' as being 15 June 1942. Even be it that it was "accepted" the Applicant himself maintains that he informed relevant authorities of his year of birth being 1940. The Respondent contends that there was no error in the certificate "as it correctly specifies the person to whom Australian citizenship was granted". If the year of birth was, in fact, 1940 then as the Tribunal sees the situation there was an error in the certificate, it not correctly specifying the person to whom it was granted.

5. With reference to the statutory declaration made by the father the Respondent contends that this "is merely what his father thought to be his son's age at that time". A statutory declaration is hardly a "thought" and even be it that the word "approximately" is used beside the age of each of the children and extending to his wife and concubine this does not detract from its significance. It is further maintained that there is "now no other evidence with any degree of authority" that the Applicant's year of birth is other than 1942. The evidence before the Tribunal shows not only that the Applicant declared his year of birth as being 1940 and not 1942 from the year 1957 but that on a number of occasions he so declared it in official documents and on some occasions departmental officers altered the date given by him.

6. It is true as the Respondent maintains that there is no birth certificate and no registration of the Applicant's birth. It is said that there is a need to maintain the integrity of the Australian registration system and this is most certainly so. The intent of the legislation enabling an amendment to be made to a certificate is as the Tribunal sees it in aid of maintaining this integrity. Where an error is satisfactorily shown then the legislation enables an amendment to be made. It is true as the Respondent also maintains that even if it is accepted that an error was made that the error would not have happened if the father had been truthful. The credibility of the Applicant is not put at issue yet the Respondent still maintains that, the amendment should not be effected.

7. The Respondent submits that he Applicant has failed to provide any "independent third party evidence" describing the year of birth as 1940. The Tribunal is reasonably satisfied on the whole of the material placed before it that the year of birth as specified in the certificate is not correct and that it should be shown as 1940. The error was not made by the Applicant, it was made by the department on information supplied to it by the father which information was incorrect to his knowledge. A failure to rectify the error would in the opinion of the Tribunal itself tend to detract from the integrity of the certificate. The context of the legislative provision as earlier mentioned suggests that desirable amendments should be made enabling relevant persons to benefit in accord with the legislative intent. An amendment would not impede the proper and efficient administration of the Act. Strong administrative arguments have not been advanced by or on behalf of the Respondent against the factors contained in the evidence which objectively appear reasonable and warrant the amendment being made.

8. For the reasons herein before set forth the Tribunal is of the opinion that the application should be granted. Accordingly the decision under review is set aside and a direction made that the relevant certificate be amended to show the year of birth of the Applicant as 1940.

I certify that the preceding 39 paragraphs are a true copy of the reasons for the decision herein of:

The Hon Mr R N J Purvis, QC, Deputy President

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

Dates of Hearing  23 August 2000
Date of Decision  18 October 2000
Representative for the Applicant    Self Represented

Advocate for the Respondent         Paula Chadderton