Hammoud and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 887
•24 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/119
GENERAL ADMINISTRATIVE DIVISION ) Re
AHMAD HAMMOUD
Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date24 August 2004
PlaceSydney
Decision The decision under review is set aside and the Tribunal amends the Applicant’s certificate of Australian Citizenship under section 47 of the Act so as to read:
Ahmed Hamoud
Born 15 August 1964
[SGD] Ms N Isenberg
Member
CATCHWORDS
CITIZENSHIP – Amendment to Australian Citizenship certificate – Date of birth – Australian Citizenship Act 1948 s 47.
LEGISLATION
Australian Citizenship Act 1948 s.47
CASE LAW
Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373
REASONS FOR DECISION
24 August 2004 Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunal, (“the Tribunal”) is the decision of the Respondent, Minister for Immigration and Multicultural and Indigenous Affairs, dated 22 January 2004, (T2, p.5), to not amend the Applicant’s certificate of Australian Citizenship.
BACKGROUND
2. The Applicant came to Australia as a child with his parents. In 1976, his father became an Australian citizen and the Applicant’s name was included on his father’s Administration of Oath or Affirmation of Allegiance form (‘the oath form’). There the Applicant’s date of birth was recorded as 20 June 1967. A Certificate of Evidence of Citizenship (‘the certificate’) was issued to the Applicant, which recorded his birth date as 20 June 1867. The Applicant sought to have that changed to 15 August 1964.
LEGISLATION
3. Section 47 of the Australian Citizenship Act 1948 (“the Act”) provides that the Respondent has the discretion to amend a certificate of Australian citizenship where the Respondent is satisfied it is desirable to do so.
4. The Australian Citizenship Instructions ("ACI") paragraph 7.5.5 state:
‘Generally, amendments under s47 are to be made only in cases of departmental error.’
ISSUE BEFORE THE TRIBUNAL
5. Whether the Applicant’s certificate of Australian Citizenship should be amended.
THE HEARING
6. A hearing was held before the Tribunal on 14 July 2004 at which the Applicant was self-represented and the Respondent was represented by Mr Gallo, of Blake Dawson Waldron, solicitors.
EVIDENCE
7. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents") and supplementary documents, (which included documents relied on by Mr Hamoud), which I took into evidence. In addition, the Applicant made available his current certificate of Australian Citizenship and the certificate of Australian Citizenship of his father.
8. The Applicant and his father, Nazir Hamoud both gave evidence and were cross-examined on behalf of the Respondent. I also asked them questions.
DISCUSSION OF EVIDENCE and FINDINGS
9. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
10. The Applicant’s certificate of Australian Citizenship apparently recorded his particulars as follows:
‘AHMAD HAMOUD
Born on 20th June 1867’
11. In the Applicant’s ‘Request For Amendment to Citizenship Certificate’ form dated 5 January 2004, he requested a change to his date of birth to 15 January 1964, which accorded with the date of birth recorded on his driver’s licence and other personal documents. That request was refused but the certificate of Australian Citizenship was amended to correct the obvious error in relation to year of birth.
12. The Applicant’s present certificate, dated 22 January 2004, therefore records his particulars as follows:
‘AHMAD HAMOUD
Born on 20th June 1967’
13. Before me the Applicant sought to have 3 aspects of the certificate of Australian Citizenship amended. He contended that his year of birth should be 1964, his date of birth should be 15 August, and his name should read ‘Ahmad Hamoud (formerly known as Hammoud)’. His preference though, he said, was that his name be amended to record his surname as ‘Hammoud (formerly known as Hamoud)’ as this is the name he and his family use.
YEAR OF BIRTH
14. The Applicant and his father told me that his family’s circumstances in Lebanon were poor. He had been born at home, with the assistance of a midwife. His birth was not recorded, and this was commonplace among poorer families. It was only those who were born in hospital whose births were officially and accurately recorded. To register births was expensive, and the family needed the money for food.
15. The Applicant’s father left Lebanon and took the family to Syria, but required evidence of the birth of his children. Because he had not registered the Applicant’s birth, the Applicant’s father said he decided to describe his two elder sons as twins in order to avoid any fine for not having registered the Applicant’s birth, some 2 years earlier. This was the date that found its way into the document which supported the family’s migration to Australia, and consequently into the oath form, the Applicant’s passport and his certificate: 20 June 1967.
16. The family arrived in Australia in about 1969.
17. It was the Applicant’s evidence that he completed his secondary schooling in 1979 or 1980 after finishing Year 9. A reference from the principal of the school does not appear to be formally dated, (Exhibit R1, p.6). The Applicant said that after leaving school he worked part time for about a year for a company called Magazine Promotions, and then for about 2 years full time. A reference from that company dated 15 October 1982 (Exhibit R1, p.7) confirmed that he worked for 3 years, which would suggest that he started in about 1980. Hence he is likely to have left school in about 1979.
18. A copy of the Applicant’s driving record was produced, indicating that the Applicant’s licence was first issued on 19 May 1982, (Exhibit R1, p.9).
19. The Applicant had provided a copy of the birth certificate dated 6 June 1980 of his sister (Nada Hammoud, who was born on 18 May 1980) (Exhibit R1, p.13). That birth certificate noted that previous children of the Applicant's sister's parents include "Ahmad 16 years". As at 6 June 1980, if the Applicant's date of birth were 15 August 1964, the Applicant would have been 15 years of age, and not 16 years of age. This discrepancy was not pressed at the hearing.
20. The solicitor for the Respondent submitted that if I accepted the Applicant’s evidence then there was also other material from which I could form a view as to the Applicant’s year of birth being 1964. If he had been born in 1967, then at the time he left school in about 1979, he would only have been 12 years of age. At the start of the 3 years when he worked for the company, he would only have been about 13 years of age. Similarly, he would only have been 15 years of age at the time his driver’s licence was first issued.
21. The family photographs (Exhibit R1, pp. 11 & 15) clearly show that the Applicant and his next brother are not identical twins, and most likely not twins at all. When taken with the evidence as to the unlikelihood of the Applicant leaving school and joining the workforce at age 12 or 13 years of age, and of obtaining a driver’s licence at age 15 years of age, I accept the Applicant’s evidence and that of his father that he was born in 1964.
22. Having come to this view in relation to the Applicant’s year of birth I turn now to consider the Applicant’s date of birth.
DATE OF BIRTH
23. The Applicant’s father provided a letter dated 21 March 2004 (Exhibit R1, p.5), in which he stated that the Applicant's date of birth is 15 August 1964. The letter stated that at the time the family departed Lebanon in 1967-68, the Applicant's father represented the Applicant's date of birth as being in 1967, so as to avoid a penalty for failing to register the Applicant's date of birth. This is consistent with his evidence before me.
24. The Applicant's father stated:
“I do not have any other records in my possession that I am able to provide.” (Exhibit R1, p.5)
25. In a further letter dated 8 April 2004 (Exhibit R1, p.2) the Applicant's father stated that Ahmad’s date of birth is in the month of August 1964. He further stated that he was:
“…very certain of my son's DOB been in August 1964, As I married in mid 1963 and we had Ahmad after one year of marriage”.
And further:
“…I do know for certain that my son Ahmad was born in August 1964 and NOT in any other month or year.”
26. I asked the Applicant’s father how he could be sure as to the date his eldest son was born. He told me he had written it down ‘in a book’. He had searched for that book a few years ago but could not locate it, as for some years he again lived overseas. He said he wrote down in that book all the important dates for his family. He said too, that when you love somebody ‘you remember those things’ and he remembers all his children’s birthdays. He said that, although they were poor he had a calendar, which was written in Arabic and he therefore knew the date on the day his son was born.
27. In cross-examination the Applicant’s father said that he and his wife had married in September 1963. After about 45-50 days his wife became pregnant, and his son was born on 15 August 1964. He said that there was not even a ‘million to one chance’ that he could be wrong. He was also asked in cross-examination why he had not corrected his son’s date of birth when he had applied to come to Australia. He said that his priority was to get the family to Australia.
28. The Applicant said he celebrates his birthday on 15 August. At work they try to celebrate it in January, because that is when his work documents record his birthday, but he always has to tell them that his actual birthday is in August.
29. There was discussion at the hearing about the Applicant’s driver’s licence wherein his date of birth is recorded as 15 January 1964. At the hearing the Applicant told me that when he was 18 years of age he wanted to get a driver’s licence and so attended the RTA to do so. He said the ‘RTA thought I looked 18’ and accepted that he was born in 1964, and so issued him with his licence. It was some time later that he realised that his licence recorded his date of birth as 15 January 1964, but did not worry about it as his priority had been to get his licence.
30. In later years the Applicant has produced his driver’s licence as evidence of his identity and this is all that is generally called for, as ‘nobody asks to see your passport’. As a result, all his personal documents such as credit card applications, work certificates and the like record his birth date as 15 January 1964.
31. In his application for a certificate of evidence of Australian Citizenship (Form 119) dated 1 December 2003, the Applicant stated that his date of birth was 15 January 1964 (T5, p.13); as all the documents he has accord with that date.
32. In its Statement of Facts and Contentions the Respondent submitted that the Applicant's conduct in providing different dates of birth in official documents is relevant to the credibility of his evidence in respect of his date of birth generally. The Respondent also submitted that in the absence of documentary support, and given that the date in question is nearly forty years ago, that the most favourable inference which may be drawn from the two letters from the Applicant's father is that the Applicant's father recalls that the Applicant was born in the month of August 1964.
33. However I had the benefit of hearing from the Applicant and his father. I accept their evidence that the family was poor and that the Applicant’s father was not prepared to spend money otherwise needed for food on the registration of his eldest son’s birth. I also accept that this was not unusual in respect of those who were not born in a hospital. Further I accept that, the explanation of the ‘twins’ when some formal document was required, given the family’s impecunious circumstances.
34. I accept the Applicant’s father’s evidence that of his clear recollection of the Applicant’s date of birth. He had a calendar and wrote the date in his book where special family events were recorded.
35. I accept that the date of 15 January 1964 has been, in effect, a self-perpetuating error. Once the Applicant obtained a driver’s licence with that as his date of birth, albeit, he says, incorrect, it formed the basis of subsequent documents which required proof of identity.
36. The solicitor for the Respondent referred me to Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373 In accordance with that decision I find:
- there is sufficient evidence for the Tribunal to be satisfied that the date of birth shown on the Applicant's certificate, (as amended by the delegate), namely 20 June 1967, is incorrect;
- there is sufficient evidence for the Tribunal to be satisfied that 15 August 1964 is the Applicant's correct date of birth; and
- there is sufficient evidence for the Tribunal to be satisfied that is it desirable that the certificate be amended.
‘HAMOUD’ AND ‘HAMMOUD’
37. The Applicant’s father’s oath form and his Certificate of Australia Citizenship refer to him as ‘Nazir Hamoud (formerly known as Hammoud)’. The Applicant said that he and his wife and children use ‘Hammoud’, and it would be convenient if his certificate reflected this. (I observe that he has handwritten on his certificate ‘known as Alan Hammoud’)
38. I clarified with the Applicant that his original family name had been Hammoud, but that when they came to Australia they had used ‘Hamoud’. When he obtained citizenship his father had arranged for the notation ‘formerly known as Hammoud’. It was to this original version of the name that the Applicant wished to have his certificate amended.
39. I observe however that this is not part of the request made by the Applicant to the Department for Immigration and Multicultural and Indigenous Affairs and is not therefore before me for review. Only matters which have been considered at the primary level are reviewable by the Tribunal.
40. However in view of my findings above in relation to other aspects of the certificate I consider it appropriate to make the following observations. It is by virtue of the Applicant’s father’s oath (form) that the Applicant became an Australian citizen on 20 February 1976, when the Applicant was aged 11. Mr Hamoud senior was described there as ‘formerly known as Hammoud’. I consider that the children, including the Applicant, should also have been described in that way. In that way there has been an error by the Department in it description of the Applicant in that document and consequently in his certificate. Because this issue is not before me I can only recommend that this change be effected in addition to those in relation to year and date of birth.
41. I observe that this would not be the Applicant’s ‘preferred position’ but nonetheless serves to address the overall accuracy of his certificate. Formal change of the Applicant’s name is not a matter for the Respondent nor this Tribunal.
DECISION
42. The decision under review is set aside and the Tribunal amends the Applicant’s certificate of Australian Citizenship under section 47 of the Act so as to read:
Ahmed Hamoud
Born 15 August 1964
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: .....................................................................................
AssociateDate of Decision 24 August 2004
Representative for the Applicant Self Represented
Solicitor for the Respondent Mr Dominic Gallo
0
0
0