Ghosn and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 751

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/337

GENERAL ADMINISTRATIVE DIVISION  DIVISION		)
Re		NEVILLE GHOSN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Ms R Hunt, Senior Member

Date19 July 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................

Ms N Bell

Presiding Member

IMMIGRATION – s47 Australian Citizenship Act – Application of Departmental Policy Where No Departmental Error Claimed

Australian Citizenship Act 1948

Re Celik v Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699

Re Tran v Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231

Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 (18 October 2000)

REASONS FOR DECISION

19 July 2004	Ms N Bell, Senior Member
Ms R Hunt, Senior Member

1.      On 22 November 1971 the Applicant’s father, Mr John Gohson (formerly known as Jean Ghosn), was granted Australian citizenship and provided with a Certificate of Australian Citizenship (“certificate”) (T7).  The Applicant, born on 9 December 1961, was included, together with his brother, on that certificate because they were minors.  The Applicant’s name was stated on the certificate as “Neville Gohson (formerly known as Ghosn)”.

2.      On 10 February 2004 the Applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) to amend his name on the certificate to “Neville Ghosn” (T5).  That application was refused by the Minister’s delegate on 16 February 2004 (T2).  The Applicant seeks review of that decision by this Tribunal.

3. Section 47 of the Australian Citizenship Act, 1948 provides:

“Amendment of Certificates

(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 affect as so amended.”

4. The Australian Citizenship Instructions state, at paragraph 7.5.5, that amendments under section 47 are to be made only in cases of departmental error (T4). The instructions also state, in that same paragraph, that policy should not be applied inflexibly and if the particular circumstances of a case warrant the making of an amendment, then decision makers are able to venture outside policy guidelines.

5.      The Applicant’s evidence was to the effect that he is yet to encounter any practical difficulty arising out of how the name currently appears on the certificate but is nevertheless troubled by the fact that it does not accord with the name he goes by or the name that appears on his passport (T6 and formerly T8).  He said that his children have the surname “Ghosn” and that is the name that appears on their birth certificates as well as their passports.  Mr Ghosn stated that he would prefer there be uniformity between all of the family documents.  He said that when he obtained citizenship by descent for his four children he relied on his father’s citizenship certificate, on which his name appears.  It was the Applicant’s evidence that he encountered no difficulty in having the Department issue his children’s certificates of citizenship by descent with the surname “Ghosn”.

6.      The Applicant could offer the Tribunal no explanation as to why his father had been granted his Australian citizenship in the name “John Gohson (formerly known as Jean Ghosn)”.  Mr Ghosn noted that he was just ten years old when his father obtained citizenship and could only ever recall going by the surname “Ghosn”.  Mr Ghosn added that about twenty years ago, he had had the spelling of his name changed on his own passport.  It was the Applicant’s evidence that he has never changed his name by deed poll.  He also agreed that the name that appears on his father’s certificate could not accurately be described as an error, as he did not know of the circumstances that caused his father’s surname to be spelt as “Gohson”.

7.      The Applicant said he is concerned that, in the future, the discrepancy in the surnames may give rise to some form of legal issue.  Mr Ghosn articulated ta concern as to possible future confusion relating to inheritance for his children.

8.      We accept the Applicant’s evidence.

9.      In Re Celik v Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699a, the then Senior Member McMahon concluded that the Tribunal is not bound by the terms of departmental guidelines and that should the error concerned be one made by the Applicant, this does not act as a bar to the matter falling within the terms of those guidelines.

10.     In Re Tran v Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231, the Tribunal noted that should an error be found, on the balance of probabilities a second question must be satisfied, that being:

“... whether it is desirable for any reason to amend the certificate. That is the question posed by section 47 itself. The section is not couched in terms of the certificates being accurate but in terms of the “desirability” of amendment.” At para 36.

11.     As to the question of desirability, the Tribunal in Tran’s case referred to Celik’s case and quoted:

“In my view, it cannot be thought that it is desirable for a certificate of Australian citizenship to contain information which has been proved to be incorrect.  Once that error has been proven, it cannot be said to be desirable that it should remain unaltered.  As reliance is placed upon details in official documents by other official bodies, and by citizens having dealings with the holder of an official document…it is desirable, in my view, that all statements of fact appearing on the face of that document should be as accurate as one can reasonably expect in human affairs.” At para 42.

12.     In Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 (18 October 2000) the Tribunal said:

“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.” At para 11.

13.     It was not the Applicant’s evidence to the Tribunal that the spelling of his father’s surname as it reads on the certificate is an error.  The Applicant has only been able to point to a vague concern about the possibility of difficulties associated with inheritance if the amendment sought by him is not made.  While his concern and his desire for consistency is understandable, the evidence from the Applicant is that he has encountered no difficulties in any other matters concerning his citizenship by descent and the name that appears on his father’s certificate.  Indeed, his evidence was that he had no difficulty in having the citizenship by descent of his four children certified in the name “Ghosn”.  The Tribunal considers that the desire that the Applicant expressed to unify all identity documents in his possession is not, of itself, reason enough for an amendment to be made.

14.     Having regard to the decisions of the Tribunal noted above and to the absence of any disadvantage or difficulty for the Applicant or his family arising out of the citizenship certificate as it stands, we consider that there is no reason for which it is desirable that the certificate be amended.

Decision

15.     The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         Ms Linda Blue.............................................
  Associate

Date of Hearing  8 July 2004
Date of Decision  19 July 2004
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms Naomi McLaughlin