Mouhana and Minister for Immigration and Citizenship

[2007] AATA 1419

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1419

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1052

GENERAL ADMINISTRATIVE DIVISION		)
Re		WAFIC MOUHANA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date8 June 2007  

PlaceSydney

Decision The Tribunal sets aside the decision of the Respondent and remits the matter to the Respondent with a direction that the Applicant's certificate of Australian citizenship be amended to show his name as "Wafique Mhanna".

..................[sgd]............................

Mr S E Frost
  Member

CATCHWORDS

CITIZENSHIP - certificate of Australian citizenship - request for amendment - whether it is "desirable" for any reason to amend the certificate – decision under review set aside

LEGISLATION
Australian Citizenship Act 1948 - section 47

CASE LAW
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake)

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Drake (No. 2)

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158

Re Celik and Department of Immigration and Ethnic Affairs (1988) 17 ALD 699

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

Yangnouvong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 62

Braham and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 539

Ghosn and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 751

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

Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 844

Martinovic and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 951.

REASONS FOR DECISION

8 June 2007 Mr S E Frost, Member        

1.      The Applicant, an Australian citizen since 1984, has never identified himself by the name that is printed on his certificate of Australian citizenship.  He says that WAFIC MOUHANA is not the way his name should be spelt.  He asked the Minister to amend his certificate of citizenship to reflect the preferred spelling of his name – WAFIQUE MHANNA.  The Minister refused, and it is that refusal that is now under review.

the issue for determination

2. The question for me is whether, in the language of section 47 of the Australian Citizenship Act 1948 (the Act), I am “satisfied that it is desirable for any reason” that the Applicant’s citizenship certificate should be amended.

the background

3.      The circumstances that led to the Applicant’s request for an amendment to his citizenship certificate are as follows:

·In June 2006 he applied, in the name Wafique Mouhanna (the name he has always used), to the NSW Police for the renewal of a Security Master Licence for the business he owns;

·The Police response indicated that the application could not be processed because the “name on the application form differs from that on the documentation provided as evidence of permanent Australian residency”.  The documentation that had been provided was the Applicant’s certificate of Australian citizenship, in the name “Wafic Mouhana”;

·The Applicant spoke to the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called) to see whether it was possible to get his certificate of citizenship changed.  He was told that he should take his original identity documents (which were issued in Lebanon, his country of birth) to the Community Relations Commission (CRC) and obtain a certified translation of those documents from Arabic to English;

·He followed that suggestion, and had his birth certificate translated, apparently for the first time.  The CRC interpreter translated his name from the Arabic as “Wafique Mhanna”;

·Next, as instructed, he took the certified translation to the Department, expecting that he would obtain an amended citizenship certificate;

·The certificate was indeed amended, but not to the Applicant’s satisfaction.  The Department corrected his date of birth (originally shown as 13 January 1968) to 1 January 1968, but refused to make any further amendment to his certificate.  This refusal was apparently on the basis that the Department held on file a translation, dated 1976, of what was described as a “Family Composition Book” showing the Applicant’s name as “Wafic Mouhana” and therefore, as I understand the Department’s reasoning from the refusal notification, there was nothing further to correct. 

This reasoning may become clearer when I explain the Minister’s contentions in more detail.  I will do that after setting out the facts in more detail.

the facts in detail

4.      I find the facts to be as follows. 

5.      The Applicant’s father had a Lebanese passport that was issued in 1974.  The passport was written in both Arabic and French.  On the page containing the holder’s personal details, and opposite the label “Prénoms et Nom – Name”, was the name “Abdulmonem Mohamad MHANNA”.

6.      The father became an Australian citizen in 1975.  The name on his certificate of citizenship is shown as “Abdul Monem Mohamad MOHANNA (formerly known as MHANNA)”.

7.      It was the Applicant’s father who applied for Australian citizenship for both his son and his daughter.  A document (T18) that is apparently a draft of the application for citizenship in relation to the son (the Applicant in these proceedings) shows the name of the father as “Abdul Monem Mohamed Mohanna” and of the son as “Wafic Mohanna”.  When eventually lodged, however, the application form (T7) showed the father’s name as “Abdul Monem Mohamad Mohana” and the son’s as “Wafic Mouhana”.  These documents were evidently prepared for the Applicant’s father by a relative or friend.  I infer from the variety of spellings used that the father (and possibly also the person who was helping him) had an incomplete grasp of the letters of the alphabet used for the English language and little or no appreciation of the fact that the names were not always being spelt the same way.

8.      The Department of Immigration and Ethnic Affairs (as it was then called) wrote to the father, addressing him as “Mr A M Mouhana”, referring to the application for citizenship in relation to both the son and the daughter and noting that:

Before the matter can be further considered we need to establish:-

1.    The name under which you obtained your Australian Citizenship

2.    The correct spelling of the names of your children, and

3.    Your marriage certificate for perusal.

9.      There is no evidence of the father’s response to that letter, although, given that the Applicant’s certificate of citizenship was eventually issued in the name “Wafic Mouhana”, it seems likely that, if there was any response, it would have been to the effect that the children’s surname should be spelt “Mouhana”. 

10.     It was probably at this time that the translation of the “Family Composition Book”, referred to above, was provided to the Department.  This translation is expressed by the translator to be from an “Arabic language uncertified copy”.  The translator shows the surname of the father, the son and the daughter as “Mouhana” but also provides a “Translator’s Note” in the following terms:

This surname may also be transliterated as: MHANNA, MOHANNA or MOUHANNA.

11.     After the first day of the hearing, the Minister arranged for an alternative translation of the Applicant’s birth certificate, this time by the Sydney Language Centre.  That translation shows the spelling of the Applicant’s name as something different again – “Wafiq Muhanna”.

12.     For most of the time that the Applicant has lived in Australia, and certainly throughout his adult life, he has spelt his name “Wafique Mouhanna”.  He gave evidence, which was not challenged, that (apart from his citizenship certificate) all the documents that refer to him – including driver’s licence, bank records, land title documents and university degrees – use the spelling “Wafique Mouhanna”.

13.     It was the NSW Police refusal to process the Security Master Licence for his business that convinced him that he needed to do something about the spelling of his name “once and for all”.  Furthermore, it was the CRC translation of his birth certificate (suggested by the Department) that convinced him that the preferred spelling of his name was WAFIQUE MHANNA and not WAFIQUE MOUHANNA.

the legislation

14. Section 47 of the Act is in the following terms:

(1)Where the Minister is satisfied that it is desirable for any reason that a certificate of Australian citizenship should be amended, the Minister may amend the certificate.

(2)A certificate that has been amended in pursuance of this section shall be of effect as so amended.

the minister’s contentions

15. There is a body of guidelines known as the “Australian Citizenship Instructions”, or ACI, which guided the Minister’s delegate in making the decision which is now under review. The Minister contended that those guidelines should similarly guide me in the exercise of the discretion in section 47.

16.     Paragraph 7.5.5 of the ACI says:

Generally, amendments under s 47 are to be made only in cases of departmental error.  However, delegates must not apply policy inflexibly and can go outside policy guidelines, with the support of their OIC, if the particular circumstances of a case warrant it.

17.     My initial impression of the Minister’s contentions was that I should pay close attention to the first sentence of that Instruction, but very little attention, if any, to the second.  There was a focus by the Minister’s representative on the question whether the Department had made an error in the spelling of the Applicant’s name when the certificate was originally issued – a focus that is reminiscent of the reasoning in the Department’s refusal letter mentioned in paragraph 3 above.

18.     However, later written submissions on behalf of the Minister were put somewhat differently.  These submissions referred to paragraphs 7.5.1 to 7.5.5 of the ACI, which I now set out in full:

7.5.1Section 47 of the Act provides a broad discretion for the Minister to amend certificates if satisfied it is desirable to do so for any reason.  A certificate of Australian citizenship can only be amended under s47 of the Act and only by a s47 delegates (sic).

7.5.2Under current policy guidelines, the delegate may normally amend a citizenship certificate to:

·correct a departmental error that they are satisfied was made when the original certificate was issued

·reflect a gender reassignment or

·delete the names of children.

7.5.3A decision not to amend a certificate is reviewable by the AAT.  The AAT has the power to order that the original certificate be amended.

7.5.4Amendments are an alternative to the issue of a replacement certificate where a departmental error has occurred.  As a matter of law, however, amendments are the only means whereby another person may be deleted from a citizenship certificate.

[Note omitted as irrelevant]

7.5.5Generally, amendments under s47 are to be made only in cases of departmental error.  However, delegates must not apply policy inflexibly and can go outside policy guidelines, with the support of their OIC, if the particular circumstances of a case warrant it.

[Examples omitted as irrelevant]

19.     After referring to the decisions in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake), Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Drake (No. 2)), Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 and Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, the submissions on behalf of the Minister were:

(a)government policy is a relevant factor in the determination of an application for review of a decision (in a similar vein, the Tribunal in [Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225] commented that the guidelines were relevant in forming part of the background of facts to which the Tribunal ought to be informed when making its decision);

(b)the Tribunal should make an independent assessment of the lawfulness of the relevant policy;

(c)the Tribunal should then make a correct or preferable decision on the material before it (cf merely performing a supervisory role in asking itself whether the quality of the Minister’s decision was one that might reasonably be made according to the law); and

(d)error is not constituted by the Tribunal applying considerations in accordance with the Minister’s policy as a guide in relation to the subject matter.  However, error is constituted if the Tribunal treats the application by a Minister of his/her policy as paramount.

20.     I agree with those submissions.

consideration of the australian citizenship instructions

21. Properly understood, paragraph 7.5.2 says that the existence of one of the named circumstances will normally lead to the favourable exercise of the discretion in section 47. What it does not say is that the discretion should not be exercised favourably if none of the circumstances exist.  In other words, one of the circumstances is normally sufficient, rather than necessary, for the favourable exercise of the discretion.

22. Paragraph 7.5.5 is structured differently. Unless proper regard is paid to the word “generally” in the first sentence, the statement could suggest to a decision-maker an extensive narrowing of what is a very broad discretion in section 47 of the Act. A delegate who turned his or her mind to the question of departmental error, and to nothing else, would be failing to exercise properly the discretion which is given by section 47. However, the decision-maker is cautioned against that failure by the second sentence of the paragraph, provided the focus is on the final words – “if the particular circumstances of a case warrant it”. But even so, those words themselves add little guidance to a diligent decision-maker who, in the exercise of discretion, should always be turning his or her mind to the “particular circumstances of a case”.

should the tribunal take the guidelines into account?

23.     Cases such as Drake, Drake (No. 2) and Nevistic confirm that the Tribunal should normally take policy into account when considering what is the correct or preferable decision for the Tribunal to make.  These cases, however, discuss the position of a somewhat higher level of government policy – Ministerial policy, often scrutinised by the Parliament – than that in issue here.  Nevertheless, if only for the reason that it encourages consistency in decision-making, policy statements such as the ACI will normally be taken into account by a Tribunal reviewing an earlier decision-maker’s exercise of discretion.  (This is always subject to the proviso that the policy is lawful.)

24. Undeniably, the Australian Citizenship Instructions are lawful, in the sense that they do not unlawfully fetter the delegate’s exercise of the discretion in section 47. As I have noted earlier, both paragraphs 7.5.2 and 7.5.5 could initially give the impression that they set out too narrow a range of circumstances likely to enliven the favourable exercise of the discretion. However, once they are read with a careful and discerning eye, it is apparent that this is not the case. Paragraph 7.5.2, for its part, provides that the existence of any of the named circumstances is likely to lead to a favourable exercise of the discretion, but it says nothing about the outcome if the circumstances do not exist. As for paragraph 7.5.5, the better view is, I think, that the second sentence must not be overlooked if “departmental error” has not occurred.

25. At the end of the day, though, they are not particularly helpful in the context of the case before me. The circumstances in paragraph 7.5.2 do not apply, and for that reason the paragraph does not assist me. Paragraph 7.5.5 merely urges a proper consideration of the “particular circumstances” of the case, which is nothing more than a restatement of the task before me. It is more helpful, in the circumstances, to examine what the Tribunal has said in other cases where section 47 has been considered.

other cases in which section 47 has been considered

26.     In Re Celik and Department of Immigration and Ethnic Affairs (1988) 17 ALD 699, Senior Member McMahon (as he then was) dealt with departmental guidelines which were for practical purposes identical to the first sentence of paragraph 7.5.5 of the current ACI. The Department said in a letter to that applicant:

It is the policy of this department that details shown on a certificate of Australian citizenship, are not to be amended, unless a departmental error was made before or when the original certificate was issued.

27. The Senior Member formed the view that he could not be bound by the terms of the restrictive policy but that he would have regard to it. He went on to say, at page 700, in discussing the meaning of “desirable” in section 47:

It may therefore be taken that desirable should not be read as if it were advisable, commendable, fitting, opportune, expedient, prudent or any other word than desirable.  All of those words indicate passive criteria.  By contrast, it seems to me that desirable implies a positive aspiration.  If something is desirable, it is more than something that is merely advisable.  It is something worthy of achievement towards which one should actively aim.  In the statute it is a word of wide application, particularly when accompanied by the phrase ‘for any reason’.  The Shorter Oxford English Dictionary defines it as ‘worthy to be desired; to be wished for’.

Section 47 appears in ‘Division V – Miscellaneous’ of the Act among other sections designed to facilitate the administration of the Act.  This context suggests that desirable amendments to certificates should be only those intended to assist persons for whose benefit the Act was enacted which do not, at the time, impede the proper and efficient administration of the Act.  In considering an application for amendment, the minister should be guided both by legislative intent and good administrative practice.  It is desirable that applications which appear reasonable objectively should be granted unless strong administrative arguments against them can be demonstrated.  A balance is to be struck between these two competing criteria.  Certainly the minister can not preclude the exercise of his discretion by locking himself inflexibly into a narrow policy.  Discretions are granted by statute so that attention may be given to individual cases.

28.     On the question of the “desirability” of amending a certificate, Deputy President Purvis made similar comments in Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910.

29.     Later cases that have referred with approval to Celik, and to which the Minister referred me, are Yangnouvong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 62, Braham and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 539 and Ghosn and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 751. I also brought to the Minister’s attention the decisions of the Tribunal in Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373, Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 844 and Martinovic and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 951.

30.     Of those cases, Yangnouvong, Qureshi and Nguyen dealt with applications to amend the date of birth.  In Qureshi, Senior Member Beddoe decided that in the circumstances of that case he first had to be satisfied that the date of birth shown on the certificate was incorrect.  Where the matter in dispute is a person’s date of birth, that approach may well be the only proper one.  Where, on the other hand, the issue is the preferred transliteration of a person’s name, the question of right and wrong is more elusive and may, in the end, not be particularly meaningful.

31.     Braham is of little assistance because, as an application for an extension of time to request a review of the Minister’s decision, the merits of the applicant’s case were not fully explored.

32.     In Martinovic the applicant was able to satisfy the Tribunal that the department had made an error in issuing the certificate in the name “Blagaja Martinovic” and ordered an amendment of the given name to “Blago”.  But it is not the Applicant’s contention here that the department made an error, and so Martinovic also does not assist.

33.     In Ghosn, the applicant sought amendment of his certificate of citizenship from “Neville Gohson (formerly known as Ghosn)” to “Neville Ghosn”.  The Tribunal declined to order the amendment, stating at paragraphs 13 and 14 of its reasons:

It was not the Applicant’s evidence to the Tribunal that the spelling of his father’s surname as it reads on the certificate is an error. The Applicant has only been able to point to a vague concern about the possibility of difficulties associated with inheritance if the amendment sought by him is not made. While his concern and his desire for consistency is understandable, the evidence from the Applicant is that he has encountered no difficulties in any other matters concerning his citizenship by descent and the name that appears on his father’s certificate. Indeed, his evidence was that he had no difficulty in having the citizenship by descent of his four children certified in the name ‘Ghosn’. The Tribunal considers that the desire that the Applicant expressed to unify all identity documents in his possession is not, of itself, reason enough for an amendment to be made.

Having regard to the decisions of the Tribunal noted above [Celik, Fung and Re Tran and Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231, which discussed Celik extensively] and to the absence of any disadvantage or difficulty for the Applicant or his family arising out of the citizenship certificate as it stands, we consider that there is no reason for which it is desirable that the certificate be amended.

consideration

34.     I am satisfied on the basis of the evidence presented that:

·the Applicant does not identify with the name that is written on his certificate of citizenship;

·his name came to be written as it is on the certificate not through his own representations to the Department but through those of his father, most likely with the assistance of a relative or friend;

·his father, with an imperfect command of English and probably unable to read it competently, was not alert to the fact that his and his children’s surnames were being spelt differently at different times and on different forms;

·the fact that no other document is consistent with the CRC translation of his birth certificate is now causing inconvenience to the Applicant on a personal level, and also in relation to the efficient conduct of his business.

35.     The Applicant has demonstrated more than the “vague concern about the possibility of difficulties” referred to by the Tribunal in Ghosn.  He has encountered obstacles with the NSW Police in the application by his business for the renewal of a Security Master Licence.  In terms of the matters discussed in Celik, the Applicant’s request is “reasonable objectively”.  There is, in my view, in the particular circumstances of the Applicant’s case, a “positive aspiration” that his certificate should record a rendering of his name that is acceptable to the Applicant, rather than one with which, as he has demonstrated over so many years by the use of an alternative spelling, he is not satisfied. 

36.     I find it curious that the Minister should continue to take the position that the name on the certificate should remain spelt as “Wafic Mouhana” when the CRC translation, obtained at the Department’s suggestion, spells the name as “Wafique Mhanna” and the alternative translation commissioned by the Department spells it as “Wafiq Muhanna”.  I see nothing desirable in maintaining the status quo in the light of those two translations and the Applicant’s dissatisfaction with the way his name is currently shown on the citizenship certificate.

37.     As for the suggestion that the CRC translation is somehow inferior or less reliable because there is no evidence that the translator is accredited by NAATI – the National Accreditation Authority for Translators & Interpreters – I simply note that it was the Department itself that recommended CRC to the Applicant.  It is, of course, also the case that the rendering of the surname as “Mhanna” is consistent with the Applicant’s father’s passport.

38.     The Minister did not suggest that an amendment to the certificate would “impede the proper and efficient administration of the Act”, nor that there were “strong administrative arguments” against granting the application for amendment (refer to Celik at page 700, and paragraph 27 of these reasons) although the Minister had had ample opportunity to address that issue by the time the hearing was resumed on 16 May 2007.

conclusion

39.     For the reasons stated, and after striking a balance between the competing criteria, as suggested in Celik, I am satisfied that it is desirable that the Applicant’s certificate of citizenship be amended to show his name as “Wafique Mhanna”.  Therefore I set aside the decision under review and remit the matter to the Respondent with a direction that the certificate be amended accordingly.

I certify that the preceding 39 paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:  …...[K Portus]…….
  Associate

Date of Hearing  21 March & 16 May 2007
Date of Decision  8 June 2007
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Xuelin Teo of Clayton Utz Lawyers