Turkman v Registrar, NSW Registry of Births Deaths & Marriages
[2011] NSWADT 258
•27 October 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Turkman v Registrar, NSW Registry of Births Deaths & Marriages [2011] NSWADT 258 Hearing dates: 27 October 2011 Decision date: 27 October 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Births, Deaths and Marriage Registration - change of registered name on birth certificate Legislation Cited: Births, Deaths and Marriages Registration Act 1995 Cases Cited: Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137 Category: Principal judgment Parties: Yashar Turkman (Applicant)
Registrar, NSW Registry of Births Deaths & Marriages (Respondent)Representation: Y Turkman (Applicant in person)
Crown Solicitors (Respondent)
File Number(s): 113206
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Turkman has applied to the Tribunal for review of the determination by a delegate of the Registrar, NSW Registry of Births Deaths & Marriages ("the Registrar") to refuse his application for registration of a change of name.
Background
The Births, Deaths and Marriages Registration Act 1995 ('the BDMR Act') provides that a person may apply to the Registrar for registration of a change of the person's name: section 27. A person is generally allowed no more than three registered changes of name during his or her lifetime: section 29B. However, the Registrar may register a further name change if satisfied that the reason for the proposed change of name warrants the registration: section 29C(2)(a).
Three changes of name have been registered in relation to Mr Turkman. Changes of name were registered on 2 May 2001, 1 December 2004 and 25 September 2006.
On 10 May 2011, Mr Turkman applied for a fourth registration of a change of name. The Registrar did not approve the fourth registration. Mr Turkman sought internal review of that decision and the determination was affirmed. Mr Turkman applied to the Tribunal for a review of this decision.
The matter came before me for hearing on 27 October 2011. On that occasion I determined that the Registrar's decision should be affirmed and I gave brief reasons for the decision. The Registrar has sought written reasons for the decision and these reasons are provided in response to that request.
Applicable legislation
Section 29B(b) of the BDMR Act imposes restrictions on the number of name changes that may be registered in relation to a particular person. 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:
...
(b) 3 or more changes of the person's name have been registered (whether in this State or in another State).
Section 29C(2) sets out exceptions to the section 29B(b) restriction. 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
...
The BDMR Act does not define "reason" for the purposes of section 29C(2)(a). The remaining provisions in section 29C are not relevant to this matter.
Mr Turkman's case
Mr Turkman appeared and gave evidence in support of his application. His reasons for seeking registration of a further change of name include the desire to have the same surname as his son to avoid problems when he travels overseas with his son; to enable his prospective wife to change her surname to his former name; and to enable him to inherit from his deceased father's estate.
Mr Turkman's evidence is that when he travels to visit his family in Iraq he and his son are questioned due to their different surnames.
He also fears that he is unable to inherit from his deceased father's estate due to his name being different to that of his father. He stated that the Iraqi authority that is responsible for dealing with his father's estate does not recognise his Australian documentation. He did not have any evidence in support of that assertion and it is my understanding that he has not formally been refused the right to inherit from his father's estate.
Mr Turkman has filed a translation of the death certificate of a person who is presumably his father", which records his date of death as 16 July 1983. However, Mr Turkman's evidence is that the translation is incorrect and that his father actually died in 2007.
Respondent's case
The respondent contends that the decision not to register Mr Turkman's most recent change of name is the correct and preferable decision. Ms Sanders submits that as Mr Turkman has already registered three changes of name, the Registrar is only permitted to approve a fourth registration if "satisfied that the reason for the proposed change of name warrants the registration of the change of name". She says that on the material before it, the Tribunal cannot be so satisfied.
Ms Sanders points to the reasons advanced by Mr Turkman for wishing to register a change of name for a fourth time. She submits that the desire to have the same surname as his son, to avoid problems with the Iraqi Government when travelling and to enable his prospective wife to change her surname to his former name are matters of personal preference. She says that while Mr Turkman would prefer to avoid possible inconvenience when he travels to Iraq he did not provide any evidence that he will not actually be able to travel to and from Iraq if his fourth change of name is not registered. Likewise, she says that Mr Turkman has not suggested that he will be unable to marry if he does not change his name.
Further, Ms Sanders submits that Mr Turkman has not provided any evidence to support his claim that he requires a change of name in order to inherit from his late father's estate, or, indeed, to show that he is a beneficiary of his late father's estate.
She relies on views expressed by Judicial Member Molony in Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137 where he stated at paragraph [14]:
14 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, is insufficient to enliven the discretion. There must be some ground or circumstance over an above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory.
Ms Sanders submits that Mr Turkman must be able to point to "some good reason or ground warranting a further change to the register" before the discretion under section 29C(2)(a) may be exercised. She says that Mr Turkman's desire to avoid inconvenience is insufficient to enliven the discretion under section 29C(2)(a) as it is a reason focussed on matters of "personal preference, likes or dislikes". Likewise, she submits, the stated wish to have the same registered surname as his son, and for he and his wife to have registered his original surname, are matters of personal preference. To allow a person to register a fourth change of name because he or she considers that his or her current name will cause inconvenience, or because he or she has a particular preference, would render the restrictions imposed under section 29B nugatory.
Ms Sanders further submits that regardless of whether Mr Turkman's claim that he is unable to inherit from his deceased father's estate without a change of name is a reason of a kind that should be considered in the exercise of the Registrar's discretion, Mr Turkman has never provided any evidence to substantiate his claims in that regard.
She said that if, in the future, Mr Turkman is able to provide any evidence to substantiate his claims in that regard, it is open to him to furnish the Registrar with that evidence in the form of a fresh application. The Registrar offered to expedite the processing of any such application.
However, the Registrar submits that on the material before the Tribunal, the correct and preferable decision is to decline to exercise the discretion under section 29C(2)(a) to allow Mr Turkman to register a fourth change of name.
Consideration
In my view, the decision of Judicial Member Molony in Ezekeil v Registrar of Births, Deaths and Marriages correctly states the approach to be taken in matters of this kind. While I appreciate the difficulties that confront Mr Turkman in dealing with the legal system in Iraq, particularly those that have arisen as a result of the destruction of records during the Iraq Wars, I am not satisfied that the material before me is sufficient to warrant a further change to the register. I agree with Ms Sanders' submissions in this regard.
The Registrar has offered to provide Mr Turkman with a record of his previous name changes so that he can present it to officials in Iraq. I anticipate that those Iraqi officials may be able to provide Mr Turkman with an indication as to whether that record will be sufficient to meet their requirements. If that is not the case, and Mr Turkman is able to obtain correspondence from those officials that support his view that he will be unable to inherit from his deceased father's estate due to his name being different to that of his father, that correspondence can form the basis for a further application to the Registrar. The Registrar is prepared to expedite the processing of such an application in an attempt to accommodate Mr Turkman's plans to travel to Iraq in the near future.
However, given my view that the material before me is not sufficient to warrant a further change to the register, the correct and preferable decision is to refuse to refuse Mr Turkman's application for registration of a change of name. Accordingly, the decision under review should be affirmed
Order
The decision under review is affirmed.
Decision last updated: 10 November 2011
4
1
1