Medukenya and Minister for Immigration and Citizenship

[2007] AATA 1628

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1628

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600747

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JUDITH ELIA OLE MEDUKENYA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member

Date3 August 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and, in its stead, directs that the Certificate of Australian Citizenship of the applicant be amended pursuant to s 47 of the Australian Citizenship Act 1948 so as to show her date of birth as 20 December 1979.  

(sgd) B.H. Pascoe

Senior Member

citizenship – amendment to Certificate of Australian Citizenship – year of birth – incorrect date shown on certificate

Australian Citizenship Act 1948

Re Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910

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

REASONS FOR DECISION

August 2007 Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the respondent Minister for Immigration and Citizenship dated 9 October 2006 refusing a request by the applicant, Ms J. Medukenya, to change her date of birth on her Certificate of Australian Citizenship.

2.      Ms Medukenya arrived in Australian in 1997 having formerly resided in Tanzania.  Her residence visa showed her date of birth as 20 December 1976 being the date on her passport and visa application.  She applied for Australian Citizenship on 5 February 2004, again showing her date of birth as 20 December 1976.  Australian Citizenship was granted on 28 July 2005 and the certificate reflected that same date of birth.

3.      By letter of 13 June 2006, Ms Medukenya requested that the date of birth on the citizenship certificate be changed to 20 December 1979.  She enclosed an affidavit from her mother stating that this was the correct date of birth.  The respondent wrote to Ms Medukenya requesting additional documentary evidence.  None was produced in the time specified and, by letter of 9 October 2006, the respondent refused the request.

4.      Subsequent to the date of referral and prior to the hearing by this Tribunal, Ms Medukenya produced the following documents:

·Certificate of Baptism in Swahili

·Certificate of Completion of Primary Education in Swahili

·Affidavit in the name of her father but not signed by him although bearing the signature of a Commissioner of Oaths

·Secondary School Leaving Certificate in English

·Certificate of Confirmation of Evangelical Lutheran Church of Tanzania

·Certificate of Birth certified by the District Registrar of the Mbozi District of Tanzania as a true copy of the entry in the register.  This certificate was in English

Each of these documents stated the date of birth as 20 December 1979.

5.      At the hearing, Ms Medukenya said that her original passport had been arranged by her uncle in Tanzania and he had incorrectly shown her date of birth as 20 December 1976.  She said that, on arrival in Australia she believed that she could not change the passport and needed to use the same incorrect date in the visa application and citizenship application.  As a result of difficulties her parents were experiencing, her own problems with depression and marriage breakdown, she felt unable to seek a correction of that incorrect date.  As a result of psychological treatment and completion of tertiary studies she now seeks to correct the error to assist in her self esteem and with applications for employment.

6.      It was submitted for the respondent that the decision under review was the appropriate decision on the basis of the limited information provided at the time of request.  It was said that there could be doubt as to the authenticity of the primary school and baptism certificates as the first was dated 1991 and the second undated but both appeared to have been completed in similar, if not the same handwritten block capitals.  The affidavit of Ms Medukenya’s father was unsigned and, therefore, said to be of little weight.  The respondent had some concern in relation to the Certificate of Birth as being in the English language and produced in 2007 rather than as a contemporary document.

7.      Ms Medukenya said that English was one subject only at primary school level but secondary education was totally in English.  She said that official documents by government authorities were generally in English. 

8. Section 47 of the Australian Citizenship Act 1948 (the Act) provides that the Minister may amend a Certificate of Australian Citizenship where he is satisfied that it is desirable for any reason to do so.  In Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373 the Tribunal described the approach to be taken as being in three steps, as follows (paragraph 20):

…

I turn now to consideration of s 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 s 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. …

In the matter of Re Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910, Deputy President Purvis stated (at paragraph 11):

… 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. …

9.      In this matter and based on the evidence of Ms Medukenya and the quantity and quality of the documents produced by her, I am satisfied that the date of birth shown on the citizenship certificate is incorrect and that her correct date of birth was 20 December 1979.  While this affidavit of her father was unsigned by him so as to have little evidentiary weight, I have no reason to disbelieve the authenticity of the remaining documents provided.  Further, I am of the opinion that for a 27 year old lady to be required to live with her primary Australian evidence of date of birth being three years out is most undesirable.  Consequently I am satisfied that it is desirable to amend her Certificate of Australian Citizenship to show her date of birth as 20 December 1979.  It is acknowledged that the bulk of evidence to support the amendment has been produced well after the decision under review was made.

10. As a result of the foregoing, the decision under review should be set aside and, in its stead, direct that the Certificate of Australian Citizenship of Ms Medukenya be amended pursuant to s 47 of the Act so as to show her date of birth as 20 December 1979.

I certify that the ten (10) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member

Signed:         Dianne Eva
  Clerk

Date of Hearing  24 July 2007
Date of Decision  3 August 2007
Advocate  Self Represented 
Solicitor for the Respondent     David Brown, Australian Government Solicitor