Martinovic and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 951

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/211     

GENERAL ADMINISTRATIVE DIVISION		)
Re		BLAGO MARTINOVIC

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date29 September 2005

PlaceSydney

Decision

The decision under review is set aside. The application is remitted to the Respondent with a direction that the Applicant’s Declaratory Certificate of Citizenship be amended pursuant to section 47 of the Australian Citizenship Act 1948 so as to read:

BLAGO MARTINOVIC

[SGD] Ms N Isenberg

Member

CATCHWORDS

CITIZENSHIP – amendment to Declaratory Certificate of Citizenship – first name –amendment is desirable – decision set aside and remitted to Respondent with a direction that it be amended pursuant to section 47 of the Australian Citizenship Act 1948.

Australian Citizenship Act 1948 s.47

Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

REASONS FOR DECISION

29 September 2005 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      This is an application by Mr Martinovic (“the Applicant”) for review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”), dated 10 February 2005, not to amend his Declaratory Certificate of Citizenship to show his first name as ‘Blago’ instead of ‘Blagaja’.

2.      A hearing was held before me on 24 August 2005 at which Mr Martinovic was self-represented and the Respondent was represented by Mr R Higgins of Clayton Utz Lawyers, Canberra. I had before me the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("T-documents") which I took into evidence. Mr Martinovic gave evidence and was cross-examined on behalf of the Respondent.  I also asked him questions.

BACKGROUND

3.      The following agreed facts are set out by way of background:

·Mr Martinovic was born in Podgorje, Municipality of Mostar, Bosnia and Herzegovina on 25 March 1942 (T4/15).

·Around October 1963 Mr Martinovic came to Australia on an Austrian passport.

·On 18 October 1971 Mr Martinovic was granted Australian citizenship and issued a Declaratory Certificate of Citizenship issued in the name of Blagaja Martinovic (“the Certificate”). The particulars of grantee on the reverse side were recorded as Blagaja Martinovic.

·A marriage certificate issued for Blago Martinovic and Sima Prskalo in Krusevo, Bosnia and Herzegovina on 23 September 1977.

·On 26 August 1982 a Certificate of Competency - Power Crane Driver - was issued to Mr Martinovic in the name Blago Martinovic.

·On 9 May 1986 an Australian passport issued to Mr Martinovic in the name Blago Martinovic and a New South Wales drivers licence was issued in the name Blagoje Martinovic (T5/18).

·An Extract from the Birth Register of Bosnia and Herzegovina was issued on 19 January 2005 in the name Blago Martinovic (T4/15).

·On 7 February 2005 Mr Martinovic lodged a Request for Amendment to Citizenship Certificate changing his first name from ‘Blagaja’ to ‘Blago’ (T4/14).

·The application for amendment to Citizenship Certificate was refused on 10 February 2005 (T2/4).

·On 17 February 2005 Mr Martinovic applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision (T1/3).

·By letter dated 30 June 2005, the Embassy of Bosnia and Herzegovina, Canberra stated that Mr Martinovic’s birth certificate and marriage certificate are original documents.

LEGISLATION

4. 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, for any reason, to do so.

5. The broad discretion contained in section 47 of the Act to amend a Certificate is guided by the policy contained in the Australian Citizenship Instructions ("ACI"). The Tribunal will ordinarily apply policy such as the ACI unless it is unlawful or its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

6.      Paragraph 7.5.2 of the ACI provides the circumstances in which a Citizenship Certificate may normally be amended:

"Under current policy guidelines, the Minister or his/her delegate may normally amend a citizenship certificate:

·to correct a departmental error which he/she is satisfied was made when the original certificate was issued;

…”

Paragraph 7.5.5 of the ACI provides:

“Generally, amendments under s 47 are to be made only in cases of departmental error. However, decision-makers should not apply policy inflexibly and can go outside policy guidelines, with the support of the Officer-in-Charge, if the particular circumstances of a case warrant it.

Some examples where a decision-maker might go outside policy include, but are not limited to:

-     refugees with no documentation who are subsequently able to get genuine documents with different dates on them;

-     a woman in a stressful divorce action who wishes to revert to her maiden name (proof that situation won’t change may be asked for, ie, final divorce papers or the equivalent)”

ISSUE BEFORE THE TRIBUNAL

7.      Whether the Applicant’s Certificate should be amended to reflect his first name as ‘Blago’ instead of ‘Blagaja’.

DISCUSSION OF EVIDENCE AND FINDINGS

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

9.      Mr Martinovic told me that when he was born he was called by the name ‘Blago’ and his birth was registered as such. He was also christened under that name. When he went to school he was called ‘Blago’.

10.     I asked him about the name ‘Blagaja’. He appeared to have some difficulty pronouncing the name. He said it was a female name and he did not actually know anyone by that name. It is a rare name, unlike ‘Blago’, which is a saint’s name and many boys born at the same time as him would be called ‘Blago’. I note that he was born in a small village in Bosnia Herzegovina during World War II. 

11.     He told me that he went to Austria as a refugee, and without papers. It was not until he was at the airport, leaving Austria for Australia, also as a refugee, that he was given an Austrian ‘passport’. That document was in the name of ‘Blago’.

12.     He arrived in Australia in 1961. In 1967 he applied for a driver’s licence. This was issued in the name of ‘Blagoje’. Subsequent licences, including his heavy vehicle licence perpetuate this name. He has a bank account in this name, but only because the bank required his driver’s licence as a means of identification.

13.     In 1971 he applied for Australian citizenship. He needed the assistance of an interpreter at the time, as his English was poor. He was living in Mt Gambier, and he thought the person who assisted him was not likely to have spoken much more English than him. He could not recall if he had to produce other documents at that time, but in any event the only document he could have had was the Austrian ‘passport’ and his driver’s licence. A Declaratory Certificate of Citizenship was issued in the name ‘Blagaja’.

14.     In about 1977 he applied for, and was granted, an Australian passport. It was issued in the name ‘Blago’. He travelled overseas and in that year married in Bosnia and Herzegovina. He needed his birth certificate details to get married. His marriage certificate records his name as ‘Blago’.

15.     When his first passport expired he applied for another and that was also granted in the name ‘Blago’. That passport expired in 1991.

16.     It is now, when Mr Martinovic seeks a fresh passport, that he is refused. He was asked to produce his driver’s licence (‘Blagoje’), his Certificate (‘Blagaja’) and his previous passport (‘Blago’). He said he was told by the officer at the Picton Post Office where he had applied, when his application was refused that he should apply to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for his Certificate to be amended.

17.     The Respondent contended that the fact that the Certificate records Mr Martinovic’s given name as "Blagaja" is evidence that his application for citizenship is likely to have stated that his name was "Blagaja". Mr Martinovic conceded that this may have been the case but said that he did not speak much English at the time of his application. He conceded that ’Blago’ was the same spelling, whether in English or otherwise. The application for citizenship, however, was not produced by the Department. I note Mr Martinovic’s evidence that ‘Blagaja’ is a female name and find it unlikely that an error of this kind was made by him or on his behalf in the application.

18.     It was submitted that no Departmental error occurred when Mr Martinovic‘s name was recorded as ‘Blagaja’ on the Certificate. Further evidence to support this contention was said to be that he signed the name ‘Blagaja’ in the particulars of grantee. Upon close examination the signature may in fact read ‘Blagoja’ (Tribunal’s underlining).

19.     The Respondent contended that on the balance of the evidence the Department did not make an error when the original Certificate was issued, as the documents currently before the Tribunal do not provide a clear indication of what Mr Martinovic‘s first name is. Since coming to Australia Mr Martinovic has used three versions of his name on official documents: ‘Blago’, ‘Blagaja’ and ‘Blagoje’. Further, it was submitted, it is not possible to conclusively determine which name is correct and, therefore, which document recording Mr Martinovic‘s name is in error. Again, I note the evidence that ‘Blagaja’ is a female name. Without looking further, that would tend to eliminate that name as the correct one, and that is the name on the Certificate.

20.     It had been contended by the Respondent that all of the documents which refer to the Mr Martinovic‘s given name as ‘Blago’ are dated after the grant of Australian citizenship. 

21.     Mr Martinovic’s birth certificate records his given name as ‘Blago’, though the formal birth certificate was not applied for until, apparently, sometime this year, and in support of this application. It should be noted, however, that the birth certificate has been certified by the Ambassador for Bosnia and Herzegovina as “an original”.  There is no evidence to suggest that this does not reflect Mr Martinovic’s birth name.  His evidence before me was that he was given that name at birth, was christened with that name and used that name as a child. In fact he continues to use that name, other than when locked into the use of ‘Blagoje’ with the NSW Roads and Traffic Authority, or when required to produce his driver’s licence as a means of identification.

22.     The Respondent contended that the fact that Mr Martinovic has not attempted to amend the Certificate in over 33 years, suggests that his correct name is ‘Blagaja’, as recorded on the Certificate. I do not accept this contention. He apparently applied for an Australian passport in the name ‘Blago’, in about 1977, and again in 1986.  To some extent a passport supersedes the use of a Certificate for formal identification purposes. He had no reason to believe he would not have his passport renewedin the name of ‘Blago’  upon request. 

23.     In ordinary usage the driver’s licence is most frequently requested as the preferred means of identification. By continued production of an (erroneous) driver’s licence, an erroneous name is perpetuated. When Mr Martinovic has the opportunity, such as when applying for a fuel card, he uses ‘Blago’.  

24.     What I find particularly persuasive is that the Department itself, in 1986, issued Mr Martinovic with a passport in the name of ‘Blago’. In fact, this was Mr Martinovic‘s second Australian passport issued in that name. The first had been issued some time shortly prior to 1977 when Mr Martinovic had travelled overseas to get married. No copy of his passport application has been produced by the Department. I consider that whatever material was before the Department on those occasions was sufficiently compelling so as to persuade it that ‘Blago’ was Mr Martinovic‘s correct given name.

25.     As to the Departmental guidelines in the ACI, Mr Higgins submitted that the guidelines set out the only permissible basis for making an amendment to the Certificate and that the facts of the present case do not fall within the guidelines.

26. The guidelines do not intend to fetter the Minister's discretion conferred by section 47 of the Act. In this regard I note that they refer to the circumstances where a certificate may “normally” be amended, and that “generally” will only be in the case of Departmental error. Further, examples of other circumstances include refugees with no documentation who “are subsequently able to get genuine documents…”. Given Mr Martinovic’s previous refugee status, his circumstances may fall within this example, in any event.

27.     I reviewed the decision of the Tribunal in Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373. In accordance with that decision I find there is sufficient evidence before the Tribunal to be satisfied that Mr Martinovic’s first name was incorrectly recorded on the Certificate and that it is desirable to amend the Certifciate to reflect his correct first name, being ‘Blago’.

DECISION

28. The decision under review is set aside. The application is remitted to the Respondent with a direction that the Applicant’s Declaratory Certificate of Citizenship be amended pursuant to section 47 of the Act so as to read:

Blago Martinovic

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member:

Signed:         A. Garcia                  .....................................................................................

Associate

Date of Hearing  24 August 2005
Date of Decision  29 September 2005
Representative for the Applicant               Self Represented 
Solicitor for the Respondent  Mr R Higgins