Murugesan and Minister for Immigration and Multicultural and Indi Genous Affairs

[2003] AATA 1145

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1145

ADMINISTRATIVE APPEALS TRIBUNAL  N2003/934

GENERAL ADMINISTRATIVE DIVISION

Re: Ganapathi  Asari MURUGESAN

Applicant

And: MINISTER for IMMIGRATION and MULTICULTURAL and INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             14 November 2003

Place:            Sydney

Decision:The tribunal sets aside the decision under review and remits the matter with a direction that the respondent amend the applicant’s certificate of Australian citizenship by showing his date of birth as 18 September 1942.

(sgd) P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2003)

CATCHWORDS

AUSTRALIAN CITIZENSHIP - application to amend date of birth appearing on certificate of Australian citizenship – application refused – whether amendment to certificate is desirable  - decision set aside

Australian Citizenship Act 1948, s.47
Freedom of Information Act 1982, s.48

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 9 AAR 215
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

P.J. Lindsay, Senior Member

1.      Ganapathi Asari Murugesan was born in Thayamangalam, a village with a population of about 800, located in the state of Tamil Nadu, India.  For many years Dr Murugesan thought he was born on 21 May 1945.  This changed in 1998 when he was going through personal papers of his recently deceased mother. He found a horoscope that showed his date of birth as 18 September 1942. 

2. In 2000, Dr Murugesan applied to the tribunal for a review of a decision by the Minister for Immigration and Multicultural Affairs (the Minister). Dr Murugesan had unsuccessfully applied to the Minister under s.48 of the Freedom of Information Act 1982 to have the Department of Immigration and Multicultural Affairs amend its records to show his date of birth as 18 September 1942.  The matter settled.  Terms of settlement, signed on behalf of the Minister by an authorised officer of the Australian Government Solicitor, stated that the department would “ … amend its records to show that the applicant’s correct date of birth is 18 September 1942” (T1-10). On 8 August 2000 the tribunal, noting the parties’ consent, set aside the Minister’s decision and ordered the Department’s records be amended to show the applicant’s correct date of birth as 18 September 1942. 

3.      The applicant was surprised and angered in January 2003 when he applied for a renewal of his Australian passport with his date of birth as 18 September 1942. He was told that his date of birth had to be shown as 21 May 1945, as appeared in his previous passport. 

4.      Dr Murugesan’s current application to the tribunal concerns the decision made by the Minister for Immigration and Indigenous and Multicultural Affairs (the respondent) refusing to amend Dr Murugesan’s Australian citizenship certificate to show his date of birth as 18 September 1942.  Initially, Dr Murgesan was advised by letter dated 15 May 2003 (T1-11) that the citizenship certificate would not be amended to correct his date of birth, because the only document Dr Murgesan had submitted in support of his request for an amendment was the handwritten Tamil horoscope.  The Minister’s delegate noted that the horoscope was not a primary document of identification, and moreover it was contradicted by three such documents: a birth certificate, the applicant’s Malaysian passport and his marriage certificate. 

5.      Dr Murgesan wrote back on 26 May 2003 (T1-13) to advise that the decision to refuse to amend his Australian certificate of citizenship had not taken into account another birth certificate that showed his date of birth as 18 September 1942.  Dr Murgesan’s letter enclosed a copy of the birth certificate and stated:

You are most welcome to verify the authenticity of this certificate from any relevant authority you may choose.  It was this document that resulted in the agreement by the Australian Government Solicitor that led the AAT to hand down the decision requiring your department to amend your records to reflect my correct date of birth.

6.      Despite this additional information, the respondent on 29 May 2003 (T2) decided that an amendment would not be made to the certificate of citizenship.  The letter stated:

This new [birth] certificate however was issued on 03/05/2000.  When looking at your request to amend your Certificate of Australian Citizenship I assess whether a departmental error was made at the time your Citizenship certificate was issued.  It is clear that at the time your approval for Australian Citizenship was made and your certificate was issued, you were using the date of birth 21/05/1945.  This was not only the date of birth that you were using at the time, but also the date of birth all your documents matched at the time your certificate was issued.

I have considered all the documents your [sic] provided and in your file and have established that no departmental error was made in your application for Australian Citizenship in 1988.  As a delegate of the Minister, I am not satisfied that it is desirable to amend your date of birth.

7. At the hearing, Dr Murugesan represented himself and gave oral evidence. Ms K Howey, solicitor, appeared for the respondent. The tribunal had before it the documents prepared under s.37 of the Administrative Appeals Tribunal Act 1975 (T and S documents) and the exhibits tendered during the hearing.

issue

8. The only issue to be determined is whether the tribunal should exercise the discretion in s.47 of the Australian Citizenship Act 1948 (the Act) to amend Dr Murugesan’s certificate of Australian citizenship.

applicable legislation

9. Section 47 of the Act provides:

(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.

evidence

10.     Dr Murugesan said that he moved to Malaysia with his father in 1956.  His father was looking for work.  The rest of his family, mother, sister and brother, remained in India.  Because English was the language of instruction in Malaysian schools and he did not speak English, Dr Murugesan said he had to restart his schooling.  He was a good pupil and in some years, he topped his class.

11.   It was necessary for Dr Murgesan to produce a birth certificate in 1958 to arrange admission into high school in Malaysia.  Consequently, he obtained a hand written document dated 11 March 1958, entitled ‘Particulars of Birth’, prepared by the sub-registrar of the relevant agency in India (T1-7).  It showed his date of birth as 21 May 1945.  Thereafter any important document that was issued to him, such as his Malaysian passport (S1-2), showed that date as his date of birth. 

12.   Dr Murugesan said he has a sister, who is about 3 or 4 years older than him, and a brother who is about 3 or 4 years younger than him.  His evidence about their differences in age was rather vague.

13.     Upon learning from the horoscope (S4) that his date of birth was 18 September 1942, Dr Murugesan decided that he would investigate the discrepancy.  Dr Murugesan did not know when his horoscope (S4) was written.  He agreed with Ms Howey that according to Indian culture, horoscopes are usually written following a baby’s naming ceremony, which will be held on the 16^th or 31^st day after birth.  He told the tribunal he intends to write an autobiography, which will inform his family and future generations about how they came to settle in Australia.  He said he is interested in his horoscope only in relation to his date of birth.  It is important for him to establish what he termed his “true identity”, even though he said it has no bearing on his day to day life.

14.     Dr Murugesan explained that, in preparing his earlier application to the tribunal, he approached the Consulate General of India for assistance.  He subsequently contacted his brother in India and asked him to inspect the register of births kept by the relevant government agency, the Department of Registration.  He said his brother was given a copy of information that was extracted from the register on 3 May 2000 (T1-8).  The information, in the form of a birth certificate, disclosed the applicant’s date of birth as 18 September 1942.  Dr Murugesan disputed the assertion by the respondent’s representative that the horoscope was the origin of the information in that birth certificate.  Dr Murugesan said that it is the role of the head man of villages throughout India, to report all births and deaths to the relevant authorities.  Asked why he thought the extract from the birth certificate dated 3 May 2000 was accurate yet the birth extract obtained in March 1958 was not, Dr Murugesan explained that his brother sighted the register and it showed his date of birth as 18 September 1942. 

15.   In cross-examination Dr Murugesan agreed that, according to the 1958 birth certificate, he was around 13 when he entered high school, which is the normal age for a student in first year high school.  He said he did not notice being older than the other boys in his year, at any stage while attending high school.  In amplification, Dr Murugesan, who is a consultant psychiatrist, said that in his experience boys go through puberty at different ages, and physical development depends upon a boy’s nutrition and physiology.  The tribunal accepted in evidence a photo taken in 1963 of Dr Murugesan’s form V class, his school certificate year (Exhibit A4). He was one of six prefects in class of 36.  He disputed that the photo showed him to be of similar physical development and age as the other boys.  He accepted, however, that when he sat for the school certificate in 1963, he would have been 21 according to the birth certificate prepared on 3 May 2000, while the majority of the boys would have been aged 16 to 18.

16.     Ms Howey tendered in evidence an extract from Calendrical Calculations (E M Reingold and N Dershowitz, Cambridge University Press, 2001) (Exhibit R1).  Among other things, this work allows for the equivalent date to 21 May 1945 in the Gregorian calendar, to be established according to other calendars, such as the Islamic, Armenian, or Chinese calendars.  Now, as for the Hindu solar calendar, the equivalent dates to 18 September 1942 are 1864 and 5043.  The applicant’s horoscope states the Hindu calendar dates to be 1865 and 5044.  According to the calendrical calculator the relevant Hindu dates for 21 May 1945 are 1867 and 5046.  Asked for his comment, Dr Murugesan said he was not qualified to say whether the dates in his horoscope and the dates established by Calendrical Calculations are based on the same Hindu solar calendar.  Further, he could not agree with the proposition that the horoscope contains the correct Hindu dates but they have been wrongly translated.

17.     A letter dated 12 March 2003 from the Vice Chancellor at the University of Newcastle (Exhibit A1) noted the applicant’s appointment as a conjoint senior lecturer in the Faculty of Health for three years from March 2003. Dr Murugesan was informed by letter dated 5 September 2003 (Exhibit A2) that his visiting rights at the Northside West Clinic had been approved to 1 August 2008.  Dr R B Sanderson, Director of Clinical Services, Mid Western Area Health Service, informed the applicant on 19 September 2003 (Exhibit A3) that he had been appointed as a visiting medical officer, psychiatrist, to Bloomfield and Orange Hospitals until 30 September 2008.  This evidence was put before the tribunal to counter the respondent’s contention that, if the tribunal accepts the amended date of birth, Dr Murugesan would be entitled to a New South Wales seniors card that provides a variety of discounts and benefits. In assessing the reliability of Dr Murugesan’s evidence, the respondent contended that the tribunal should have regard to the possibility that he has been motivated by a desire to obtain a government benefit or pension to which he would otherwise not be entitled.  Dr Murugesan denied that he was pursuing his application so that he could obtain government benefits sooner than otherwise would be the case. 

findings and consideration

18.     Dr Murugesan emphasised that he was not relying on his horoscope to justify the amendment to his citizenship certificate, although he had no doubts concerning its authenticity.  Rather he relied on the birth certificate extract dated 3 May 2000.  He noted that in his earlier application to the tribunal, this document was taken into account in determining his date of birth and was accepted by the Minister as recording his correct date of birth.

19. For the respondent, a number of arguments were advanced. First, Ms Howey referred to guidelines for determining whether the discretion in s.47(1) of the Act should be exercised. They are contained in chapter 7.5 of the Australian Citizenship Instructions prepared by the Department of Immigration and Multicultural and Indigenous Affairs (the Department).   Par 7.5.1 of the Instructions states that the minister may normally amend a citizenship certificate to correct a departmental error that was made at the time the original certificate was issued, to reflect a gender reassignment or to delete names of children. Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 was cited for the point that the tribunal should not depart from departmental guidelines in the absence of good reason. It was submitted that the tribunal should not exercise its discretion in s.47 where an alleged error, such as an incorrect birth date that was supplied to the Department, has been included in a citizenship certificate through no fault of the Department.

20.     Ms Howey submitted that the tribunal should prefer the applicant’s older documents of identity as they were relied on for his original visa entry into Australia.  His Malaysian passport and marriage certificate, in particular, are more reliable than a horoscope, and a birth certificate prepared approximately 58 years after his birth.  The Department’s post in New Delhi stated that it does not and has never accepted horoscopes as evidence of a date of birth (S5).  She submitted that it was highly improbable that Dr Murugesan would have been studying for the higher school certificate at age 23 when his classmates were aged from 18 to 20.

21.     It may be accepted that the Hindu solar year dates derived from the calendrical calculator for 18 September 1942 do not match those in the horoscope. But the dates are closer than those calculated for 21 May 1945.  At any rate the tribunal does not find much assistance in the calculator one way or the other. Further, the tribunal is mindful that Dr Murugesan does not attempt to support his application by relying on the horoscope.

22. Dr Murugesan’s evidence is that he had to re-start school on moving to Malaysia as he did not speak English. Being held back for this reason would explain why he was not placed in his age group cohort. The tribunal accepts this evidence and also that he did not experience or perceive any physical or emotional differentiation throughout his schooling. The tribunal is reasonably satisfied that the birth certificate extract showing Dr Murugesan’s date of birth as 21 May 1945 is incorrect. In the earlier tribunal matter it appears that, subsequent to the extract of a birth certificate dated 3 May 2000 being provided to the Australian Government Solicitor, the parties agreed to terms of settlement dated 8 August 2000. The Minister consented to the tribunal’s making an order under s.48 of the Freedom of Information Act that the Department amend its records to show the correct date of birth, 18 September 1942.  Further, the applicant’s evidence, which the tribunal accepts, is that his brother in India actually saw his birth details in the relevant register and then made the necessary arrangements to obtain the birth certificate.   The tribunal is satisfied, therefore, that 18 September 1942 is the correct date of birth.

23.     Although the error in the citizenship certificate was due to the Department’s acting on records provided by the applicant, the tribunal does not accept the assertion in the Instructions that the discretion in s.47 should be exercised only where the Department has made a mistake. The tribunal refers to and adopts the reasons of Senior Member McMahon (as he was then) in Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 9 AAR 215 that an error is an objective phenomenon. Despite the Department not being the source of the error, the incorrect date of birth, the tribunal finds this matter is within the scope of s.47.

24.     Is it desirable that an amendment be made to Dr Murugesan’s certificate of Australian citizenship to show the correct date of birth? Re Celik was also a case about a certificate of citizenship that contained an incorrect date of birth. In deciding that it was desirable for a citizenship certificate to be amended in order to correct a date of birth, Senior Member McMahon said (at 222-3):

… 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. …

It is desirable that applications which appear reasonable objectively should be granted unless strong administrative arguments against them can be demonstrated. …

Once that error has been proven, it can not be said to be desirable that it should remain unaltered.

The tribunal respectfully adopts those reasons, as they were also by Deputy President Purvis in Re Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 and Senior Member Beddoe in Re Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373. They have like application to this matter.

25.     By the tribunal’s order of 8 August 2000, the Department’s records were to be amended to correct the applicant’s date of birth. There is a demonstrable error in the applicant’s Australian citizenship certificate.  Not to make the amendment requested by Dr Murugesan in the current application, would leave a discrepancy between the citizenship certificate and records kept by the Department.  The tribunal is not satisfied that proper and efficient administration would be impeded if this appliaction were granted.  It is desirable, therefore, that the applicant’s date of birth shown on his citizenship certificate match the date required to be shown on the departmental records.

26.     The tribunal sets aside the decision under review and remits the matter with a direction that the respondent amend the applicant’s certificate of Australian citizenship by showing his date of birth as 18 September 1942.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed:         .......................................................................................
  Associate

Date of Hearing  31 October 2003
Date of Decision  14 November 2003
Applicant  Self-represented

Respondent’s representative  Ms K Howey