KAMALESH and REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES
[2024] WASAT 99
•11 SEPTEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1998 (WA)
CITATION: KAMALESH and REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES [2024] WASAT 99
MEMBER: MS N EAGLING, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 11 SEPTEMBER 2024
FILE NO/S: CC 1034 of 2023
BETWEEN: ARPITA OSHO KAMALESH
Applicant
AND
REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES
Respondent
Catchwords:
Registration of change of name - Meaning of change - Exceptional circumstances
Legislation:
Births, Deaths and Marriages Registration Act 1998 (WA), s 29, s 29A, s 29A(1), s 29A(1)(a), s 30, s 30A, s 34(2), s 67(1)
Births, Deaths and Marriages Registration Amendment (Change of Name) Act 2020 (WA)
Interpretation Act 1984 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 60(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms K Dias |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Mastrangelo v Reynolds [2001] WASCA 347
Mellini v Registrar, Registry of Births, Deaths & Marriages [2012] NSWADT 215
R v Kelly [1993] 3 WLR 1100
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Arpita Osho Kamalesh who prefers to be known as Tamra Kamalesh (applicant), applied to the respondent, the Registrar of Births, Deaths and Marriages (respondent or Registrar), to change her name. Her application was rejected by the Registrar on the basis that she had previously registered three changes of name as an adult person and no relevant exemptions existed. The decision was reconsidered by the Registrar on 21 December 2023 who concluded that in the absence of information which satisfied her that exceptional circumstances existed, her decision remained unchanged.
The applicant has applied to the Tribunal for review of the Registrar's decision pursuant to s 67(1) of the Births, Deaths and Marriages Registration Act 1998 (WA) (the Act).
The Tribunal determined this matter on the papers, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Issues
The issues for the Tribunal are:
(a)Whether the applicant is seeking to change her name for a fourth time; and
(b)If so, whether the change is for the personal protection of the applicant or whether the change is justified by exceptional circumstances within the meaning of s 30A of the Act.
Statutory Framework
Part 5 of the Act concerns Change of Name and s 29 of the Act provides that a person's name may be changed by registration of the change under this Part.
Section 29A of the Act provides:
29A.Registrar may register change of name despite restrictions
(1)Despite any restriction imposed by this Division, the Registrar may, on application, register a change of a person's name if the Registrar is satisfied that -
(a)the change is for the personal protection of the person; or
(b)the change is because of the marriage or divorce of the person; or
(c)the change is justified by exceptional circumstances.
(2)The Registrar may require the applicant to provide evidence to enable the Registrar to be satisfied under subsection (1).
Section 30 of the Act sets out when an adult may apply to the Registrar for registration of a change of name. It is not disputed in this case that the applicant is eligible to apply for registration of a change of name. However, s 30A of the Act sets out restrictions on when the Registrar must not register a change of an adult's name. Section 30A provides:
30A.Restrictions on changes of adult's name
(1)The Registrar must not register a change of an adult's name on an application under section 30 if the Registrar is aware that -
(a)a change of the adult's name has been registered (whether in this State or in another State) within the period of 12 months immediately before the day the application is made; or
(b)3 or more changes of the adult's name have been registered (whether in this State or in another State).
(2)When counting the number of changes of name for the purposes of subsection (1)(b), a change of name made before the applicant becomes an adult must not be counted.
Section 36 of the Act does not prevent a change of name by repute or usage if the change is made after the commencement of the Act.
Sections 29A, 30 and 30A were inserted into the Act by the Births, Deaths and Marriages Registration Amendment (Change of Name) Bill 2018 (WA) (Change of Name Bill) which came into effect on 1 October 2022. The amendments restricted the number of name changes that a person could make in their lifetime. Prior to the amendments, there was no restriction on the number of changes of name a person could make in their lifetime. I will discuss the effect of the Change of Name Bill in further detail below.
Having regard to the above provisions, if three or more changes of name have been registered, the Registrar must not register any further changes of name unless they are satisfied of the criteria set out in s 29A(1) of the Act.
This application falls within the review jurisdiction of the Tribunal and therefore the Tribunal is to review the decision by way of a hearing de novo for the purposes of making the correct and preferable decision based on the information and the evidence before the Tribunal at the time of review: s 27 of the SAT Act.
On review, the Tribunal may affirm, vary or set aside the reviewable decision and, in the latter case, may substitute its own decision to arrive at the correct and preferable decision: s 29 of the SAT Act.
Is the applicant seeking to change her name for a fourth time?
It is not in dispute between the parties that:
(a)The applicant was born in Western Australia and her registered name at birth was Tamara Catherine Stumbles;
(b)On 8 February 1994, the applicant's change of name from Tamara Catherine Stumbles to Tamara Catherine Kamalesh was registered in Victoria;
(c)On 2 September 1998, the applicant's change of name from Tamara Catherine Kamalesh to Tamra Kateryna Kamalesh was registered in Victoria (Second Change of Name);
(d)On 13 March 2001, the applicant's change of name from Tamra Kateryna Kamalesh to Arpita Osho Kamalesh was registered in Victoria;
(e)Arpita Osho Kamalesh is the name currently registered to the applicant;
(f)The applicant changed her name to Tamra Kateryna Kamalesh by way of a deed poll whilst she was in the United Kingdom on 3 September 2008, 7 years after the third change of name was registered. However, she did not seek to register this change of name in Australia.[1]
(g)All the above changes of name have occurred when the applicant was an adult.
[1] Section 34(2) of the Act provides that if the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under the law, or by order of a court, of another State or of the Commonwealth, the change of name may be registered under this Act if the Registrar considers that it is appropriate to do so. However, the UK Deed Poll is not a law or a court of a State or Commonwealth: see s 5 of the Interpretation Act 1984 (WA).
The applicant argues that she is asking for a change of name to her Second Change of Name rather than changing her name for a fourth time.
Section 4 of the Act defines 'change' as:
change, in relation to a name, includes an omission or substitution.
The respondent in its Statement of Issues, Facts and Contentions (SIFC) at [57] – [60] referred the Tribunal to the decision of Mellini v Registrar, Registry of Births, Deaths & Marriages [2012] NSWADT 215:
57.In Mellini v Registrar, Registry of Births, Deaths & Marriages [2012] NSWADT 215, a New South Wales decision which considered the Births, Deaths and Marriages Registration Act 1995 (NSW) (NSW BDMR Act), the applicant sought to register a fourth change of name, the proposed name being his birth name.
58.The definition of 'change' in the NSW BDMR Act is the same as the BDMR Act.
59.The applicant submitted that the fourth name change was not a change, but a reversion to his birth name. The respondent contended that the change of name should be understood as a modification or substitution of a name and submitted that:
… this construction accords with the purpose of the statutory cap on changes of name and the objects of the Act, the prevention of identity fraud and the protection of the integrity of the Register: section 6(a1) of the Act. A person who has already changed his or her name three times should not be able to avoid these restrictions by seeking to register one of the three previous names that the person has held.
60.The Tribunal agreed with the respondent's contention that the current application constituted a fourth name change even though the Applicant sought to return to his birth name.
(original emphasis)
(footnotes omitted)
Whilst not binding on this Tribunal, I accept that the approach followed in this decision is consistent with the definition of 'change' in s 4 of the Act and that it is the correct construction of this word in the Act. In my view, the applicant is seeking a fourth name change even though she wishes to return to her Second Change of Name.
Is the change for the personal protection of the applicant or is the change justified by exceptional circumstances?
The reasons provided by the applicant as to why she wants to change her name for a fourth time
The applicant has stated that she wishes to change her name back to her Second Change of Name which she registered in 1998 and has used legally since that time for Medicare, bank accounts, driver's licence, professional qualifications and the birth certificates of her children and 'every other document pertaining to who I am'. The reason given by the applicant for changing her name is that to travel on an Australian passport in the name of her third change of name 'feels unsafe given the lack of corroboration of that name and every other document stating who I am'. She stated that:
I have concerns about travelling on a passport in the name of Arpita. My credit cards and drivers licence show me as Tamra, which is of great concern to me being in a foreign country with young children to care for if I was detained.
The applicant also argues that:
… the applicant reverting to a second change of name in circumstances where she has never used this change of name on any legal or formal documents can be said to be unusual, irregular, not routine, rare and not normally encountered.
Is the change for the personal protection of the person?
Section 29A(1)(a) of the Act provides an exception where the change is for the personal protection of the person. However, I accept the respondent's submission that the applicant has not provided any evidence in support of such a submission, beyond a statement that she feels unsafe travelling in a passport in a different name. In my view, there is insufficient evidence to establish this exemption.
What are exceptional circumstances?
The term is not defined in the Act and there are no previous decisions of the Tribunal in relation to the meaning of the term in the Act.
I accept the submission of the respondent in its SIFC that the ordinary meaning of the term is:
73.The term 'exceptional circumstances' is not defined in the BDMR Act. The ordinary meaning of the word 'exceptional' is 'forming an exception or unusual instance; unusual; extraordinary.'
In Mastrangelo v Reynolds [2001] WASCA 347 the Court of Appeal at [55] citing the English decision of R v Kelly [1993] 3 WLR 1100 at 1107, stated in relation to the meaning of the term 'exceptional' as follows:[2]
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
[2] In that decision, the issue being considered was the meaning of 'a question of law of exceptional public importance'.
In my view, the ordinary meaning of the term 'exceptional' applies therefore the circumstances must be out of the ordinary, unusual or uncommon.
The respondent, in its SIFC, referred to the object of the Change of Name Bill as follows:
38.The purpose of the Change of Name Bill was to amend the BDMR Act to 'improve change of name processes and minimise exploitation of the current system for fraudulent or criminal activity or other wrongful purposes.' That purpose is borne out in the content of the Change of Name Bill, which inserts various provisions into the BDMR Act which operate to impose requirements and restrictions upon the registration of changes of names.
39.Although the Change of Name Bill also inserts s 29A into the BDMR Act which operates to remove some of the restrictions in prescribed circumstances, it is apparent that the object of the Change of Name Bill was to constrain and moderate the circumstances in which a change of name could be registered; the object was not to widen the circumstances in which a change of name can be registered. The object of s 29A was to moderate the effect of those new restrictions in prescribed circumstances.
(footnote omitted)
I agree with the respondent's submission that the object of the Change of Name Bill was to constrain and moderate the circumstances in which a change of name could be registered. There is no suggestion in this case that the applicant seeks to change her name for fraudulent or criminal activity, however it does not follow that a change in the absence of those circumstances should be considered to be exceptional.
I also accept the respondent's submission that in every case where s 29A(1) falls to be considered, the applicant will have already changed their name three or more times, which is of itself unusual and therefore the need for exceptional circumstances must arise from matters that are not a usual feature of a person having already changed their name three or more times.
The applicant has submitted that the return to the Second Change of Name in circumstances where her third name was not used, is of itself exceptional. However, in my view, the exceptional circumstances must be established in relation to the fourth change of name - given that, as discussed above, reverting to her Second Change of Name constitutes a change. The fact that the change is a reversion to a previous used name does not make the circumstances exceptional.
In this case I am not satisfied that exceptional circumstances exist. There is no evidence that the applicant has actually encountered any difficulties whilst travelling overseas. I accept she may be concerned about the difficulties she may encounter and that the situation with respect to her names may be inconvenient, but concerns and inconvenience do not amount to anything unusual or uncommon and therefore are not exceptional circumstances within the meaning of s 29A of the Act.
If the applicant experiences difficulties travelling overseas and can provide evidence which establishes this occurrence, then this may provide a basis of a further application to the respondent on the grounds that the change sought is due to exceptional circumstances.
Orders
The Tribunal orders:
1.The respondent's decision dated 14 July 2023, as reconsidered on 21 December 2023, to decline the application for the applicant to register a change of name is affirmed.
2.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
11 SEPTEMBER 2024
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