Mellini v Registrar, Registry of Births, Deaths and Marriages

[2012] NSWADT 215

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Mellini v Registrar, Registry of Births, Deaths & Marriages [2012] NSWADT 215

Hearing dates:

On the papers

Decision date:

22 October 2012

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1. The decision under review is set aside.

2. The decision is made that the application to register a change of name from Tony Mellini to Tamer Ozer is granted.

Catchwords:

Births, Deaths and Marriages Registration - birth certificate - three changes of name already registered - whether further change warrants registration

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Births Deaths and Marriages Registration Act 1995

Cases Cited:

AHH v NSW Registry of Births, Deaths and Marriages [2011] NSWADT 267
Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490

Category:

Principal judgment

Parties:

Tony Mellini (Applicant)
Registrar, Registry of Births, Deaths & Marriages (Respondent)

Representation:

Ellis Lawyers (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s):

123065

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant has applied to review a decision of the Registrar of the Registry of Births, Deaths and Marriages ("the Respondent") to refuse his application to register a change of name on his birth certificate from Tony Mellini to Tamer Ozer. That decision was affirmed on internal review.

1. Essentially, the request was refused on the basis that this was the Applicant's request for a fourth change of the name on his birth certificate, and, in those circumstances, the agency was not satisfied that the proposed change warranted registration.

1. The Applicant's name at birth was Tamer Ozer. Three changes of name have been registered since that date:

a.On 29 October 1998, a change of name to Alexey Victor Sheptitksy was registered.

b.On 20 July 2000, a change of name to Tamer Omer was registered?

c.On 2 August 2001, a change of name to Tony Mellini was registered.

1. The Applicant had previously lodged a similar application to register a change of name from Tony Mellini to his birth name, Tamer Ozer. That application was refused on 6 October 2004. The current application is a second attempt to register that change of name.

1. The Applicant filed an application to review the Respondent's decision with the Tribunal. Section 56 of the Births, Deaths and Marriages Registration Act 1995 ("the Act") provides a right to seek such a review from the Tribunal. When read with section 38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") it confers jurisdiction on the Tribunal to hear and determine the application.

1. The matter came before the President for directions on 17 April 2012. He made directions for the filing of relevant material by the parties, and determined that the review would then be conducted on the papers.

1. Each of the parties has filed material in support of their case. The Applicant relies on his own evidence and submissions. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act, a statement by George Kyriakopoulos, a compliance office with the Respondent and the Respondent's written submissions prepared by Ms Rowley.

1. I am satisfied that the issues for determination can be adequately determined on the papers, in the absence of the parties.

The Legislation

1. Part 5 of Division 4 of the Act is concerned with the registration of changes of names on birth certificates. Section 26 provides that a person's name may be changed by registration. Section 27 makes provision for the making of applications for change by adults. Section 29B establishes restriction on the number of changes a person can request. It provides:

29B Restrictions on number of changes of name that may be registered

The Registrar is not to register a change of name of a person on application made under this Act if the Registrar is aware that:

(a) a change of the person's name has been registered (whether in this State or in another State) within the period of 12 months immediately preceding the date of the application, or

(b)3 or more changes of the person's name have been registered (whether in this State or in another State).

1. Section 29C then makes provision for exceptions to that general rule. It provides:

29C Exceptions to certain change of name restrictions

...

(2) The Registrar may register a change of name of a person despite any restriction imposed by section 27 (b) or 28 (1) (b) as to the period for which the person must be resident in the State, or any restriction imposed by section 29B, if:

(a) the Registrar is satisfied that the reason for the proposed change of name warrants the registration of the change of name, or

(b) without limiting paragraph (a), the Registrar is satisfied that the proposed change of name is sought for the protection of the person, the person's children or anyone else associated with the person, or

(c) the proposed change of name is because of the marriage of the person, or

(d) the District Court has approved the proposed change of name on application under section 28 (4).

...

The Applicant's case

1. The Applicant's evidence is that his previous name changes were out of fear for his safety. He now wants to again change his name to revert to his birth name. In his statutory declaration he explained:

"At the age of 19, in 1989 I joined the NSW Police Force. ... I was liked by many but there were a few who had threatened me as a result of me not doing them 'favours'. I resigned in 1994 ...

Over the next few years some unfriendly characters hearing I was no longer a Police officer made life for me very uncomfortable. The threats were random and could never prove the persons responsible. As a former police officer I knew just making a random report with no evidence was a waste of time. I did speak to a few people and friends and I received all sorts of advice.

In 1998 I thought the best way to protect myself was to change my name legally, so I changed my birth name of Tamer Ozer to Alexey Victor Sheptitsky at the Births, Deaths and Marriages.

For about 2 years things had settled down until I was located through mutual associates, so I had no choice but to change it again to Tamer Omer in 2000.

For some reason, relentless people found me again in 2001, I spoke to legal professionals and again because I couldn't give them precise details about the people tracking me down they told me I didn't have many options. They told me I could leave interstate but I grew up my whole life in Sydney and I thought how much harder it could be to track me down in another state. I thought my only other option was to change it again. So in 2001, I changed my name to Tony Mellini which is my current legal name.

On each occasion when I changed my name at Births Deaths and Marriages, the reason I gave was for fear of safety. They accepted this reason and changed my names. I thought to myself once time passes and threats have ceased, I will go back to my original name. However a new law came into place maximizing the change of names to 3 times unless there was a very good reason. If I knew this was going to happen, I would have just moved interstate as I always intended going back to my original name. ...

I just want to go back to the name that I am proud of and which most people still know me by. I want to get married and want to have kids. I want my wife and kids to carry the name of my ancestors."

1. In his submission to the Tribunal the Applicant's solicitor, Mr Kassem, wrote:

"After the Applicant left the police force he received threats against his safety and as a result applied for the first name change on or about 29 October [1998], second name change on or about 20July 2000 and third name change on or about 2 August 2001.

On or about 23 September 2004 the applicant sought to apply for a fourth name change, which was refused and is the subject of these proceedings.

REASONS FOR FOURTH NAME CHANGE

Essentially the Applicant was forced to make the first 3 name changes referred to above for his own protection and safety. He never envisaged that the name changes would be permanent. The reason he was required to make the name changes for his protection relate directly to his work as a police officer and it is noted the first 3 name changes all occurred within a three year period. The reasons given in each application are consistent with the evidence of the applicant in the subject application.

The last name change was over 10 years ago and the issues surrounding the previous name changes have since passed. The subject name change is in fact the applicant's attempt to claim back his birth name, which in effect he was forced to change in order to protect himself.

The fourth name change is not a change as such but a return to his birth name. His birth name is important to him because of his Muslim and Turkish heritage. It is also important he is able to pass on to his children a connection to their Turkish heritage through his original name."

The Respondent's case

1. The Respondent disputes the Applicant's submissions that the current application does not constitute a fourth name change because it is a return to his birth name. It submits that section 3 of the Act provides that "change of name includes an addition, omission or substitution". The definition is non-exhaustive and is defined in broad terms. The Respondent submits that it should be given its ordinary and natural meaning, having regard to the text, context and purpose of the Act as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490.

1. A "change of name" should be understood as a modification or substitution of a name. The Act expressly specifies that a change of name occurs each time a change of name is registered: section 26. Thus, the Respondent submits, where the Act refers to a change of name, it refers to a change of name from a person's existing name to another name. In the present circumstances, this means that the proposed fourth change of name would occur upon the registration of any name that is different to the Applicant's existing registered name, Tony Mellini. It is irrelevant that the proposed change of name is one of the Applicant's former names.

1. The Respondent further submits 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.

1. This construction is consistent with the approach adopted by the Tribunal in Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137 and AHH v NSW Registry of Births, Deaths and Marriages [2011] NSWADT 267.

1. The Respondent submits that the underlying purpose of the statutory cap on the number of times that a person may register a change of name is to prevent fraud and the abuse of the change of name system. In regard to the purpose of the provision, Mr Kyriakopoulos stated:

The Registry receives approximately 23,000 applications for the registration of changes of name each year. The Registry registers approximately 20,000 changes of name each year. Of the 23,000 change of name applications received each year, approximately 40 applications are for a fourth or subsequent registration of a change of name.

Fraud prevention is an important consideration when determining whether to register a change of name. The Registry has a number of procedures in place to minimise the risk of the change of name system being used for fraudulent or improper purposes. For example, change of name applicants are asked to disclose their criminal record and to consent to a criminal record check.

1. The Respondent submits that the decision not to register a fourth change of name for the Applicant is the correct and preferable decision: section 63 of the ADT Act.

1. The Act imposes a cap on the number of times a person may have a change of name registered, unless certain criteria are met, or the person has a particular reason warranting a further registration. The Respondent submits that Parliament evidently wished to prevent people from registering fourth or subsequent changes of name in the absence of such a reason. The Act does not define "reason". The Respondent submits that it should be given its ordinary meaning, which Macquarie Dictionary Online provides as including "a ground or cause, as for a belief, action, fact or event."

1. The Respondent submits that it is also necessary to consider the statutory context. Section 29C sets out the available exceptions for the statutory cap of three registered name changes. These are all objective circumstances that warrant registration of a change of name, notwithstanding the statutory cap.

1. The Respondent submits that the Applicant must point to some good reason, over and above personal preference, to justify the exercise of the discretion under section 29C(2)(a) to register a fourth change of name. If the Applicant is able to point to some good reason, the Applicant must also provide sufficient evidence to satisfy the Tribunal that such reason exists.

1. The Respondent contends that the Applicant has made inconsistent statements in regard to his security fears. The Applicant has stated that he only registered the previous three changes of name because of personal security reasons and that the threats no longer exist. The Respondent submits that the Applicant's desire to change his name still amounts to personal preference.

1. The Respondent submits that in any event, the Applicant has failed to establish that he changed his name three times because of threats to his personal safety and security. The evidence that he has provided is limited to the claims he has made in his statutory declarations and applications. The Respondent contends that these claims are not always consistent. In particular, the Applicant initially stated, by way of statutory declaration made on 23 February 2011:

"I did make a report to the police station which they said there was not much that they can do about it but to take precautions the best way I can. So I decided to change my name."

1. However, when the Respondent requested further evidence to support this claim, the Applicant's legal representative stated, by letter dated 16 March 2011:

"Our client is not in a position to provide to you evidence justifying that he had reported to the NSW police in relation to the threats he received as being a former police officer. He states that without direct evidence any such complaint made to the police would be a waste of time."

1. The Applicant made a statement to similar effect in his statutory declaration dated 30 August 2011:

"Over the next few years some unfriendly characters hearing I was no longer a Police officer made life for me very uncomfortable. The threats were random and I could never prove the persons responsible. As a former police officer I knew just making a random report with no evidence was a waste of time. I did speak to a few people and friends and I received all sort of advice.

In 1998 I thought the best way to protect myself was to change my name legally."

1. The Respondent submits that if the Applicant did in fact make a report to the police, he has not yet provided any evidence of it. If he did not make such a report, then that is contrary to his earlier statement that he did.

1. The Respondent further contends that the Applicant failed to use his current name for all purposes. In regard to this issue Mr Kyriakopoulos stated:

When a change of name is registered, the applicant agrees to change all identity documents to the applicant's new name. Prior to determining an application to register a change of name, the Registry routinely asks applicants to demonstrate that they have used their current name in all of their identity documents. This is important because if a person has not been using his or her name exclusively and for all purposes, there could be a risk that he or she is using multiple identities for fraudulent or improper purposes.

If a change of name applicant is unable to demonstrate that he or she has used his or her name exclusively and for all purposes, then the usual procedure is to inform the applicant that the Registrar may refuse the change of name application unless the applicant provides evidence that the applicant uses his or her current name exclusively and for all purposes.

1. The Respondent submits that the failure to use a registered name exclusively and for all purposes may indicate that a person has changed his or her name, or seeks to change his or her name, for improper or fraudulent purposes. In each previous application, the Applicant has been asked to declare that he will use the new name for all purposes in the future. Pursuant to section 30(1)(b) of the Act, the Respondent routinely ask change of name applicants to provide evidence that they have used their existing name for all purposes. This is important because if a person has not used their name for all purposes, then there could be a greater risk that the person may have been using his or her registered name for an improper or fraudulent purpose. Where an Applicant is unable to provide such evidence, or provides evidence that they have been using different identities for different purposes, the Registrar may refuse to register the proposed change of name because he is not satisfied that the change of name is not being sought for improper or fraudulent purposes.

1. Further, it contends that the Applicant failed to demonstrate that he has been using his name for all purposes e.g. it points to his failure to change his name on the electoral roll. It says that if the Applicant did register multiple changes of name to protect his safety and security, then the Applicant would have also ensured that he changed his name on the electoral roll. Anybody could inspect the roll, look up the Applicant's name, and determine his place of address.

1. Taking into account all of the circumstances of the application, the Respondent submits that there could be a risk that the proposed change of name may be for an improper or fraudulent purpose. As the purpose of the statutory cap is to prohibit further changes of name other than in quite limited circumstances, so as to minimise the risk of the change of name system being used for fraudulent or improper purposes, this is relevant to the Tribunal's determination.

1. Having regard to the Applicant's failure to provide evidence to substantiate the claim that he changed his name for security reasons, the inconsistencies in the Applicant's explanation, the failure of the Applicant to change his name on the electoral roll and thus use his new identity to protect his security, and the failure of the Applicant to use his name for all purposes (despite repeated requests from the Respondent for him to demonstrate that he has done so) the Respondent submits that the Applicant has failed to establish that he has a good reason for seeking the registration of a fourth change of name.

1. The Respondent also submits that the reasons provided by the Applicant relating to his proposed marriage do not constitute a reason warranting registration of a further change of name within the meaning of section 29C(2)(a) of the Act.

1. The Respondent submits that, on the evidence before it, the Tribunal could not be satisfied that there is a reason warranting the registration of the name Tamer Ozer and none of the other exceptions to the statutory cap presently apply. The correct and preferable decision, in the circumstances, is to refuse to register a fourth change of name.

Consideration

1. I agree with the Respondent's contention that the current application does constitute a fourth name change even though the Applicant seeks a return to his birth name.

1. There is no dispute that three changes of the Applicant's name have been registered in NSW. As a consequence, section 29B provides that a further change of name shall not be registered unless it satisfies one of the exceptions in section 29C(2). There is no suggestion that the exceptions in section 29C(2)(b), (c) or (d) apply.

1. With respect to section 29C(2)(a) the Registrar, and the Tribunal on review, must be satisfied that the proposed change of name warrants registration. In AHH v NSW Registry of Births, Deaths and Marriages [2011] NSWADT 267 Judicial Member Molony said at paragraph [13]:

"In the statutory context of the Births, Deaths and Marriages Registration Act 1995, I accept that an applicant who has reached the statutory cap on the number of name changes set by s 29B most point to some good reason or ground warranting a further change to the register, before the Registrar can exercise the discretion to allow a further change. I agree with the Registrar's decision that personal preference, likes or dislikes, are insufficient to enliven the discretion. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory."

1. I generally agree with this view. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted.

1. At the heart of the Applicant's reasons for seeking a further change of name is his desire to return to his birth name. This is important to him because of his heritage and the desire to be able to pass on to his children a connection to their Turkish heritage through his original name.

1. This desire alone would not be sufficient to warrant the change. However, in my view the circumstances in which the earlier changes were made are also relevant considerations.

1. I note the Respondents submission in relation to the possibility of fraud and also the assertion of inconsistency in regard to whether the Applicant reported his concerns for his safety to the Police. I do not regard those factors to be significant. On the material before me it seems probably that the Applicant did not make a formal complaint to Police. I am uncertain whether he raised it informally with Police. However, I accept the Applicant's explanation that to formally report the issue would have been futile. Without a formal report there will not be any evidence that he informally raised the issue with Police. His own evidence has not be contradicted.

1. I accept that the Applicant's previous name changes were sought because of threats to his personal safety and security. He feared for his safety and formed the belief that some protection would be afforded by the change of name. While that belief may have been misguided, I accept that it was honestly held.

1. The present application is to permit him to return to his birth name now that the threat to his safety no longer exists. I have no reason to believe that to register the name Tamer Ozer poses a risk of fraud or abuse of the change of name system. In my view the application is reasonable.

1. In the circumstances of this application, taking into account the reasons for which the earlier name changes were registered, I am satisfied that the reason for the proposed change of name warrants the registration of the change of name.

1. It follows that I do not consider that the Respondent made the correct and preferable decision when it refused the Applicant's request to register a further change of name. That decision should therefore be set aside. In its place, the decision should be made that the application to register a change of name from Tony Mellini to Tamer Ozer is granted.

Orders

1. The decision under review is set aside.

2. The decision is made that the application to register a change of name from Tony Mellini to Tamer Ozer is granted.

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Decision last updated: 22 October 2012