Le and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1013

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1013

ADMINISTRATIVE APPEALS TRIBUNAL       )
  )          N2003/1877 

GENERAL ADMINISTRATIVE DIVISION		)
Re		YUBING BETTY LE

Applicant

And       MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date               28 September 2004
Place             Sydney

Decision The decision under review is affirmed.

[SGD] Ms N Isenberg
  Member

CATCHWORDS

CITIZENSHIP – amendment to Certificate of Australian Citizenship – date of birth – Australian Citizenship Act 1948 section 47- the decision under review is affirmed

LEGISLATION

Australian Citizenship Act 1948 section 47

CASE LAW

Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373

REASONS FOR DECISION

28 September 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, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), dated 22 November 2003 (T2), not to amend the date of birth on the Applicant’s Certificate of Australian Citizenship (“Certificate”).

BACKGROUND

1. The Applicant was granted Australian Citizenship on 26 January 1990.  The Applicant’s stated date of birth on her Certificate is 7 July 1959 (T7).  The Applicant was issued with an Australian passport on 25 August 2001.  The Applicant’s date of birth on her passport is 7 July 1959 (T6).  On 7 July 2003 the Applicant applied for an amendment to the date of birth on her Certificate pursuant to the Australian Citizenship Act 1948 (“the Act”) from 7 July 1959 to 7 July 1951 (T8). On 22 November 2003 the delegate of the Minister refused the Applicant’s request to amend the date of birth on her Certificate (T2). On 2 December 2003 the Applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.

LEGISLATION

1. Section 47 of the Act provides that the Respondent has the discretion to amend a Certificate where the Respondent is satisfied it is desirable to do so.

1. Paragraph 7.5.4 of the Australian Citizenship Instructions: Amendment to Certificates of Australian Citizenship ("ACI") states:

   “Generally, amendments under s47 are to be made only in cases of departmental error . . .”.

ISSUE BEFORE THE TRIBUNAL

1. The issue before the Tribunal is whether the Applicant’s Certificate should be amended.

THE HEARING

1. A hearing was held before the Tribunal on 15 September 2004 at which the Applicant was self-represented, but assisted by Mr J So, accredited interpreter in the Cantonese language.  The Respondent was represented by Ms K Howey, of Blake Dawson Waldron, solicitors.

EVIDENCE

1. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents") and supplementary documents, (including documents relied on by the Applicant), which I took into evidence.

1. The Applicant gave evidence and was cross-examined by the Respondent.  I also asked her questions.   The Applicant called her sister, Ms Susie Fong to give evidence by conference telephone.  Ms Fong’s husband, Mr Gordon Fong also gave evidence by conference telephone.

2. The Applicant said she came to Australia in 1985 on a tourist visa.  In 1986 or 1987 she married Mr Le, who was an Australian citizen.  “Almost immediately” after her marriage she applied to become an Australian citizen.  She said she does not now recall what documents she lodged in support of her application for Australian citizenship.  She stated that it was easy in those days to obtain Australian citizenship because she was married to an Australian citizen.

3. At that time the Applicant did not regard the incorrect date on her Certificate to be important.  However, she claims that “later” her friends told her she should have it corrected because there were so many years between the date that appeared and her correct date of birth. 

4. She said she understood that the error occurred “in China” and that her Chinese passport also showed her year of birth as 1959.  She did not seek to correct that at that time, prior to her arrival in Australia, or before she applied to become an Australian citizen.

5. When her Australian passport was issued in 2001, it did not matter to her that the date on that, too, was incorrect.  She also said that the “Welfare Department” advised her to apply to have it changed although she does not now know why she had been discussing it with the “Welfare Department”.

6. The Applicant tendered a copy of a translation of a letter from her sister Ms Fong dated 1 June 2004 (Exhibit 4).  The original letter had been in Chinese but was translated by the daughter of the Applicant’s former school principal who lives in Hurstville.  The Applicant said she left the original letter at home.  The letter was said to have been written by Ms Fong, although it was apparent from Ms Fong’s evidence that she was not sure whether she had in fact written the letter to her sister.

7. I asked Ms Fong as to her own date of birth.  She responded that it was 22 February 1942.  In cross-examination she was asked about having written in the letter that she was born in 1944.  Her husband then said she was born in 1944 and she then proceeded to check her passport.  Ms Fong and her husband confirmed that Ms Fong was born in 1944, but later said that her passport stated that she was born in 1942.

8. I asked Ms Fong several times how she knew her sister’s birth year to be 1951.  No clear response was forthcoming.  From her evidence I learned that there were seven sisters in the family and that the Applicant’s date of birth “was written down a long time ago”.  She also gave evidence about the Applicant’s personal circumstances which may suggest the Applicant had been previously been married in China and that her husband had run off with someone else.  Although it would have been difficult for her to marry again, the Applicant then married Mr Le in Australia, “even though he was old”.

9. As to the birth certificate upon which the Applicant relied on in support of her application, (T5)  the Applicant said that she asked her sister in China to organise the birth certificate so as to show her “correct” date of birth.  Her sister would have had no documents showing 1951 but “knew” that the correct year was 1951 and would have told the authorities that.

10. In cross-examination it was put to her that the document was not authentic and she was shown the evidence (Exhibits 2 and 3) from the Nanqu hospital and the Ministry of Health of the People’s Republic of China to that effect.  In response, although asked directly to comment on several occasions she said only “I am old now, if it can’t be changed there is nothing can do”.  She also said: “It is so long ago, I don’t know”, although reminded that the application for the birth certificate was made only last year.

11. The Applicant no longer knows where her original birth certificate is and does not think she had it when she came to Australia.  She also said she did not know if she had ever had an earlier birth certificate.

12. She said her age could be verified by the former school principal of whom she had spoken, named Zhao Man Hang, who taught her as a child.  She lives in Hawaii and visits her daughter in Hurstville 2-3 times a year.  She is now 69 or 70 years old.  It was put to the Applicant in cross-examination that if she were born in 1951, as claimed, she would now be 53 years old.  Her former principal, now aged 69 or 70, would have been very young to have been teaching her.  In response the Applicant said it was several decades ago.

DISCUSSION OF EVIDENCE and FINDINGS

1. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

2. Section 47 of 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.

3. In Re Qureshi and Department for Immigration and Ethnic Affairs (1993) 32 ALD 373 (“Qureshi”) the Tribunal described the approach to be taken:

   “I turn now to consideration of section 47 of the Act in relation to the facts of this case. It seems to me that there are three steps in the process which I must undertake to decide whether an amendment should be made to the Certificate of Citizenship in accordance with section 47 of the Act. I first have to be satisfied that the date of birth shown on the Certificate is incorrect. If I am satisfied that the date is incorrect it is not sufficient to merely substitute another date. Before another date can be substituted I have to be satisfied as to the correct date of birth. If I am satisfied as to the first and second steps I then have to be satisfied that it is desirable that the Certificate of Citizenship be amended.”

4. The Respondent contended the Applicant’s Australian passport issued on 25 August 2001 which shows her date of birth a 7 July 1959, should be preferred to the “birth certificate” showing the date of birth as 7 July 1951.  The Respondent contended that the Australian passport is inherently more reliable than an alleged birth certificate printed approximately 52 years after the birth it purports to certify.  However, I do not place any reliance on the consistency represented by the Australian passport.  That document, in my view, was unlikely to have been issued other than in accordance with the Certificate.  It cannot be relied on to demonstrate the accuracy of the Certificate, which it post-dates.  It does, however, indicate that the Applicant did not consider her “incorrect” date of birth to be an issue in 2001, some 11 years after she had obtained her Certificate.

5. The Respondent had not been able to locate the Applicant's original citizenship application made in approximately 1990.  Nevertheless, the Respondent submitted that, as the Certificate bears the Applicant’s date of birth, an inference should be drawn that the documentation supporting the original citizenship application also bore the same date of birth. 

6. I do not know what information was provided in support of the Applicant’s application for citizenship.  It is a reasonable inference, in my view, that whatever material was provided indicated a date of birth of 7 July 1959.  This is consistent with the Applicant’s own evidence that the error had occurred “in China”.  I find there to be no evidence of Departmental error.

7. In support of that request for amendment the Applicant provided a birth certificate from the South District (Nanqu) Hospital, Zhong Shan City and the Ministry of Public Health for the People’s Republic of China.  The Respondent submitted that I should not accept the veracity of that document. 

1. Exhibit 2 is information provided by the hospital as follows:

   “According to your fax in relation to the birth certificate, it has been confirmed that it is a counterfeit birth certificate . . . The investigation reveals that our hospital has never issued such (sic) birth certificate”

2. Exhibit 3 provides information from the Ministry of Health as follows:

   “From 1 January 1996, all persons born in P.R. China after 1 January 1996 will be issued birth certificates according to law.  If people who were born before 1 January 1996 need certificates of birth, the notary birth certificate is the legal (sic) valid document.”   

The document does not appear to be certified or notarised.

1. The Applicant was invited to comment on the Exhibits but, in my view, failed to give a satisfactory explanation which might detract from the information provided.  Further, in coming to the view that the birth certificate relied on was not authentic I note that Exhibit 4, an extract from the US State Department website records:

   “Notarial birth certificates for persons long departed from China are most likely based merely upon the testimony of interested parties”.

There was no other documentary evidence before me to suggest that the Applicant’s birth year was other than 1959.

1. I observe that the Applicant did not dispute her original date of birth for a period of at least 13 years after issue of the Certificate and that she was not, in my view, able to adequately explain her failure to take any earlier action to rectify her Certificate.  What is more, she said that the documents “from China” at the time of her arrival in Australia in 1985 were also incorrect, and no steps were taken to correct those documents either.

2. As to the evidence of the Applicant’s sister, Ms Fong, I find her evidence to be unreliable in that there appeared to be some confusion as to her own year of birth.  In this regard Gordon Fong was also unhelpful.  Further, despite several direct opportunities to tell me how she could be so sure of her sister’s birth year she was not able to do so, saying only “it was written down many years ago”.

3. I found the Applicant herself to be vague in her answers, appearing perplexed even as to the year of her marriage.  Her answers to direct questions were frequently irrelevant and such information as could be gained was as a result of much patience by the interpreter, and persistence by me and the solicitor for the Respondent.

4. Applying the approach in Qureshi, I do not find, on the balance of probabilities, that the date of birth shown on the Certificate to be incorrect.

5. Having come to that view I must find that there is insufficient material for me to be satisfied it is desirable to amend the Applicant’s Certificate to show that her date of birth is 7 July 1951.

DECISION

1. The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of
MS N ISENBERG, MEMBER

Signed: Melinda Di Condio
  Associate

Date/s of Hearing       :15 September 2004
Date of Decision  : 28 September 2004
Representative for the Applicant    :Self Represented       

Solicitor for the Respondent          :Ms K Howey, Blake Dawson Waldron,            

Solicitors