Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 844

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1645

GENERAL ADMINISTRATIVE   DIVISION		)
Re		QUAN MINH NGUYEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Robin Hunt

Date4 October 2006

PlaceSydney

Decision The decision under review is varied to the extent that I find Mr Nguyen’s citizenship certificate should be amended to show his correct name, Quan Minh Nguyen. The decision not to amend his date of birth is affirmed.

..............................................

Ms Robin Hunt
  Senior Member

CATCHWORDS

IMMIGRATION – Australian Citizenship Act – application to change details on citizenship certificate - application of departmental policy where no departmental error.

Australian Citizenship Act 1948, ss 47, 52A

Australian Citizenship Instructions, chapter 7

Re Celik v Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699aRe Tran v Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231

Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 (18 October 2000)

Yangnouvong and Minister for Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699

REASONS FOR DECISION

4 October 2006 Ms Robin Hunt, Senior Member   

summary

1.      The applicant, Mr Nguyen, applied for a grant of Australian citizenship on 27 November 1990. The Minister granted his application and, on 17 May 1991, his certificate of citizenship issued. The certificate was issued in the name of Minh Quan Nguyen born on 3^rd June 1972. On 9 May 2005 Mr Nguyen requested that his Australian citizenship certificate be amended to show his name as Quan Minh Nguyen and his date of birth as 29 April 1974. This request was refused on 7 July 2005. On 18 July 2005 Mr Nguyen again requested that his Australian citizenship certificate be amended. This request was refused on 10 October 2005 and Mr Nguyen sought review of this refusal with the Administrative Appeals Tribunal. I have decided that Mr Nguyen’s citizenship certificate should be amended to show his correct name, Quan Minh Nguyen. The decision not to amend his date of birth is affirmed.

background

2.      According to the Minister’s records, Mr Nguyen was granted a visa to travel to Australia on 13 February 1987 and his details on the visa document accorded with the citizenship certificate later issued to Mr Nguyen (T6, p 50). When Mr Nguyen, applied for a grant of Australian citizenship on 27 November 1990, he filled out an application form in which he gave his family name as ‘Nguyen’ and his given names as ‘Minh Quan’, as for the visa. His application set out his date of birth as 3 June 1972.

3.      When the Minister granted his application, Mr Nguyen’s certificate of citizenship listed his name as Minh Quan Nguyen, born on 3 June 1972. However, on 9 May 2005, Mr Nguyen asked for the certificate to be amended in respect to his name and date of birth. Mr Nguyen’s request was refused. He made another request for amendments to the certificate on 18 July 2005.  This request was also refused. He then asked for review by the tribunal and the exercise in his favour of the statutory discretion available in these circumstances.

issue

4.      The issue for the tribunal is whether Mr Nguyen’s certificate should be amended as he requests. The tribunal has discretion to decide the certificate should be amended if it finds it is desirable for any reason that the certificate should be amended.

legislation and policy

5. The tribunal’s discretion is governed by the legislation and policy. Section 47(1) of the Australian Citizenship Act 1948 (the Act) provides that a certificate of Australian citizenship may be amended:

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.

6.      Policy guidelines suggest when amendment may be desirable. The Australian Citizenship Instructions state, at paragraph 7.5.5, that:

Generally amendments under section 47 are to be made only in cases of departmental error.

7.       The instructions also state, in that same paragraph, that policy should not be applied inflexibly and, if the particular circumstances of a case warrant the making of an amendment, then decision makers are able to venture outside policy guidelines. While the tribunal should depart from policy only where it has substantial reasons to do so, it must also exercise its own independent judgement, see Re Drake and Minister for Immigration and Ethnic Affairs (2) (1979) 2 ALD 63.

CONSIDERATION OF EVIDENCE

8.      Mr Nguyen in 1990 provided to the Department of Immigration and Multicultural Affairs a certified copy of a birth certificate and an English translation. These documents showed Mr Nguyen’s date of birth as 3 June 1972. When Mr Nguyen later requested amendments to his particulars, he claimed that his correct date of birth was 29 April 1974 and that this had been certified on a later certificate obtained for him by his sister in Vietnam. Mr Nguyen claimed that he no longer had the certificate showing his date of birth as 29 April 1974 but he had produced it to the NSW Roads and Traffic Authority (RTA) to obtain a driver’s licence. He gave further evidence that, prior to the RTA production, he had taken the certificate to a translating service to obtain an English translation. He had since lost the certificate and had tried to obtain the original both from the translator and the RTA. Neither organisation had been able to help him.

9.      Mr Nguyen’s oral evidence to the tribunal was that he had given all documents in his possession to the RTA. In support of his request for the changes to his certificate, he had provided a photocopy of a certified copy and a copy of an English translation of an “Extract from Certificate of Birth/Baptism” with the place of issue shown as Vietnam, the date of issue as 8 April 2005 and the date of Mr Nguyen’s birth as 29 April 1974. The copy of the English translation shows the original was sighted and the translation made on 7 November 2005. However, the documents on which the citizenship certificate was based were an original certificate and translation and show his date of birth as 3 June 1972. Mr Nguyen told the tribunal he was unable to obtain another certificate with his correct particulars as the Vietnamese authorities now just had the faulty record showing the 1972 birth date.

10.     He no longer had the original correct version and did not know where it was. He thought he had given it to the RTA but they said they had not kept the documents he produced to them. The translation service told him they had kept no record either. The tribunal allowed Mr Nguyen considerable time after the initial hearing to investigate possible avenues for a certificate supporting his claim but he was unable to produce any new evidence. The respondent also attempted to assist Mr Nguyen and acknowledged that it received from him six facsimile transmissions that were responses to his FOI requests. The RTA, Medicare and the translation service, CRC, all wrote that they made searches of their records and stored documents. They went on to explain to the effect that they could not find the documents he requested.

11.     Mr Nguyen advised that the RTA had destroyed the copy of the translation of the original birth certificate. Mr Nguyen was unable to improve the quality of the evidence on which he was relying to establish the 1974 birth date beyond the copies he had supplied to the Department  It follows that I am not able to accept his evidence as sufficient proof of his having been born in 1974 as claimed.

12.     In Re Celik v Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699a, the then Senior Member McMahon concluded that the tribunal is not bound by the departmental guidelines and that should the error concerned be one made by the applicant, this does not act as a bar to the matter falling within the terms of those guidelines. The Senior Member thought that incorrect information should be corrected. This case has been followed numerous times by the Tribunal. For example, in the recent case of Braham and MIMIA [2004] AATA 539, Senior Member McMahon found that once an error has been proved and reliance is placed on the certificate by other official bodies, it should be corrected.

13.     These cases are consistent with the judgement of the Full Court in Drake above. However, I am not satisfied that similar compelling circumstances exist in the present case. Mr Nguyen has not made a conclusive case that his certificate of citizenship contains an error as to his date of birth.

14.     Further, in Re Tran v Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231, the tribunal noted that should an error be found, on the balance of probabilities a second question must be satisfied, that being:

... whether it is desirable for any reason to amend the certificate.  That is the question posed by section 47 itself.  The section is not couched in terms of the certificates being accurate but in terms of the “desirability” of amendment.

15.     As well, as to the question of desirability, the tribunal in Tran’s case referred to Celik’s case and quoted (at 42):

In my view, it cannot be thought that it is desirable for a certificate of Australian citizenship to contain information which has been proved to be incorrect.  Once that error has been proven, it cannot be said to be desirable that it should remain unaltered.  As reliance is placed upon details in official documents by other official bodies, and by citizens having dealings with the holder of an official document…it is desirable, in my view, that all statements of fact appearing on the face of that document should be as accurate as one can reasonably expect in human affairs.

16.     In Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 (18 October 2000) the tribunal said:

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.

17.     Also see Yangnouvong and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 62, where the tribunal noted that an applicant must satisfy it on the balance of probabilities that the information on the certificate is incorrect. I cannot be satisfied on the balance of probabilities in this case when I have before me more compelling original evidence of the date of birth in 1972 set out in a certified copy of a birth certificate than evidence by way of oral claims and secondary documents issued by Australian agencies rather than the country of Mr Nguyen’s birth.

18.     Having regard to the quality of the evidence and previous decisions of the tribunal and my doubts about any error in the citizenship certificate as it stands, therefore, I consider that there is no reason making it desirable that the certificate be amended as to the date of birth. While consistency with RTA and Medicare records is desirable, these are not primary source records for citizenship purposes.

19.     Having regard to the decisions of the tribunal noted above and in the absence of any evidence of disadvantage or difficulty for Mr Nguyen arising out of the citizenship certificate as it stands, I consider that there is no reason for which it is desirable that the certificate be amended in respect to his date of birth.

20.     The respondent conceded that Mr Nguyen’s correct name is Quan Minh Nguyen and that this was the order in which his name should appear on the certificate. This is consistent with the policy instructions paragraphs 7.2.8, 7.2.9 and 7.2.10. Accordingly, I will vary the reviewable decision to this extent.

Decision

21.     The decision under review is varied to the extent that I find Mr Nguyen’s citizenship certificate should be amended to show his correct name, Quan Minh Nguyen. The decision not to amend his date of birth is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt

Signed:         .....................................................................................

Rhonda Pietrini         Associate

Date/s of Hearing  14 August 2006
Date of Decision  5 October 2006
Counsel for the Applicant         N/A
Solicitor for the Applicant          Lenny Ledham
Counsel for the Respondent     N/A
Solicitor for the Respondent     Self-represented applicant