Paludi and Minister for Immigration and Multicultural Affairs

[2005] AATA 418

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/45

GENERAL ADMINISTRATION  DIVISION		)
Re		MARIA PALUDI

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date11 May 2005

PlaceSydney

Decision The reviewable decision of the Respondent on 23 December 2004 is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

CITIZENSHIP – request for amendment of date of birth on Certificate of Australian Citizenship – whether amendment is desirable– is date of birth incorrect – decision affirmed.

LEGISLATION

Australian Citizenship Act 1948 s 47

CASELAW

Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373
Le and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1013

REASONS FOR DECISION

11 May 2005 Senior Member, Mrs Josephine Kelly     

Decision to be reviewed

1.      The applicant, Mrs Maria Paludi, seeks review of a decision made on 23 December 2004 by a delegate of the Respondent, the Minister for Citizenship and Multicultural Affairs, “the Minister”, to refuse her request to amend the date of birth details on her certificate of Australian citizenship. 

2.      She was granted Australian citizenship on 9 August 1985.  Her certificate states (T1 p10):

'I hereby certify that Maria Paludi born on 22^nd October 1954 acquired Australian Citizenship pursuant to section 13 of the Australian Citizenship Act 1948 on 9 August, 1985'.'

3.      The amendment she seeks is to alter her year of birth from 1954 to 1951. 

The Evidence

4.      Mrs Paludi was born in Karachi, Pakistan, and first arrived in Australia on 12 March 1981 [T5 p31].

5.      She lodged an application for Australian Citizenship in her maiden name, Maria D`Souza, on 29 June 1982 which was rejected on 9 November 1982. She acknowledged in evidence that she had filled in “1954” as the year of her birth (R1 p9).

6.      She lodged a further application for Australian Citizenship in her married name of Maria Paludi on 7 December 1983.  Again, she acknowledged in evidence that she had filled in the year of her birth as “1954”. (R1 p17)

7.      Mrs Paludi’s explanation for filling in what she now says is the wrong year of birth is “I made a mistake”. 

8.      On each occasion that she made an application, she had to present her Pakistani passport as proof of her personal details because she did not have a birth certificate.  This will be explained later in this decision.

9.      On a further occasion, 9 November 1984, the delegate of the Minister wrote to Mrs Paludi requesting her to bring in her current (Pakistani) passport in order to verify the date that she returned from a trip overseas (Attachment E to exhibit R1). That passport was returned to the applicant on 5 March 1985. It was not in evidence.    

10.     Mrs Paludi requested the amendment on 9 December 2004.  The reasons she gave in her application to this Tribunal for seeking the amendment were:  (T1 p7):

"..  no birth certificate because most of the birth was delivered by a mid wife at home …only baptism certificate…I wrote to the church in Pakistan and asked them to send the extract from their record".

"I had mentioned to the Immigration department that maybe it was a careless mistake on my part or it could have been a typo error on their part…..I am holding an Australian passport which unfortunately also has the same date of birth as 22-10-54 instead of 22-10-51".

"I would like to make these changes for my kids so they could have the right dob on my tomb stone, that is the only reason why I am making this application."

11.     In support of her request she attached a baptism certificate which she obtained from Pakistan in 2004, her marriage certificate and what in oral evidence she described as an identity card which bore her photograph (T1 p11-13). The baptism certificate, and according to Mrs Paludi’s translation, the identity card showed her year of birth as “1951”.  Mrs Paludi also provided to the Tribunal a copy of her secondary school certificate that showed her birth date as “1951” and a statutory declaration she had affirmed on 20 March 2005 (Attachment F to R1). Ms Alex appearing for the Minister did not challenge the authenticity of any of the documents provided by Mrs Paludi.

12.     Mrs Paludi gave evidence that her Pakistani identity card was required because she worked for a government body.  Such a card was not issued to all citizens of Pakistan. In addition to what Mrs Paludi said was her year of birth, “1951”, the card showed the years 1974 and 1980.

13.     In the statutory declaration, Mrs Paludi set out the names and dates of birth of her siblings, including her brother Francis.  She stated that he had been born on 6 December 1954.  It followed, she said, that she could not have been born in October 1954. 

14.     During the proceedings, Mrs Paludi said that all her siblings lived in Australia.  Following some discussion, I requested Ms Alex to provide to me departmental records which relate to Mr Francis D’Souza, as that would be of assistance to my consideration of this case. Mrs Paludi did not object to that course. I also directed Ms Alex to send a copy to Mrs Paludi.  I commented to Mrs Paludi that if the date of birth in those documents was not the same as that she had set out in her statutory declaration, that would not assist her case. 

15.     After the hearing ended, Ms Alex provided to the Tribunal a copy of two sheets entitled “Client details” which related to Mr D’Souza.  That material became exhibit R2. It showed Mr D’Souza’s date of birth as “6 December 1953” which was contrary to what Mrs Paludi had put in the statutory declaration. 

Legislation

16. Section 47 of the Australian Citizenship Act 1948 ('the Act') is relevant and provides as follows:

Section 47.     Amendment of certificates

47.      (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.

Australian Citizenship Instructions

17.     Chapter 7 of the Australian Citizenship Instructions (“the Instructions”) is relevant and provides in summary that applications for citizenship must be made showing the date of birth in a birth certificate except where there is acceptable evidence of an amended date of birth.  Where a birth certificate is not produced, the date of birth is to be that shown on the passport or travel documents used by the applicant when entering Australia(7.2.1). It was for this reason Mrs Paludi was required to take her Pakistani passport to establish her personal details when she made both her applications for citizenship as she did not have a birth certificate.

18.     Part 7.5 is headed “Amendments to Certificates of Australian Citizenship”.  It acknowledges that the Minister or a delegate has a broad discretion, but includes policy guidelines for amendment:

•to correct a departmental error which he/she is satisfied was made when the original certificate was issued;

•          to reflect a gender reassignment; or
•          to delete the names of children.

Part 7.5.5 provides:

Generally, amendments under s 47 are to be made only in cases of departmental error. However, decision-makers should not apply policy inflexibly and can go outside policy guidelines, with the support of the Officer-in-Charge, if the particular circumstances of a case warrant it.

19.      The Instruction goes on to give some examples.

Consideration

20.     When considering whether to amend a certificate of citizenship, three steps are involved (see for example Qureshi and Department of Immigration and Ethnic Affairs (1993) 32 ALD 373, Le and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1013). They are:

·      Is the date of birth incorrect?

·      If so, what is the correct date?

·      If both those matters are satisfied, is it desirable to amend the certificate?

21.     The date of birth recorded on Mrs Paludi’s current certificate of Australian citizenship, 22 October 1954, is also the date she put in both her applications for citizenship. The present application is the first time that she has advised the Department that that date was incorrect.  I found her explanation as to why she had filled in the wrong date unpersuasive.   

22.     Ms Alex who appeared for the Minister contended that it is a reasonable inference to draw on the evidence that the date of birth on Mrs Paludi’s Pakistani  passport was 22 October 1954. I draw that inference. That passport was presented to the Department three times.  The purpose on two of those occasions was to support an application for citizenship.  The Instructions require that applications are to be made in the name and date of birth shown on a birth certificate, or if that is not available, on the passport of travel document used to enter Australia. It follows that the passport showed the same year of birth as that Mrs Paludi put in both her applications.

23.     The documents Mrs Paludi has provided to support her case, that is her baptism certificate, school certificate and identity card, do not have the character of a birth certificate or a passport which are referred to in the policy guidelines. Those two latter documents are official government records. The other documents referred to are not.    

24.     Her evidence that her brother was born in 1954 was not supported by departmental records and accordingly I do not accept her evidence on that question.  I find that Mr Francis D’Souza was born in December 1953 and accordingly she could have been born in October 1954.  

25.     It follows that I am not persuaded on the evidence that the year 1954 which appears on Mrs Paludi’s certificate of Australian citizenship is incorrect. It is therefore unnecessary to proceed to consider the further steps set out above.

Decision

26.     I affirm the decision under review dated 23 December 2004 refusing Mrs Paludi’s request to amend the date of birth on her certificate of Australian citizenship.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady

Date/s of Hearing  2 May 2005
Date of Decision  11 May 2005
Applicant Representative          Self-Represented 
Solicitor for the Respondent     Phillips Fox