William Lee and Minister for Foreign Affairs
[2015] AATA 142
•13 March 2015
[2015] AATA 142
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5577
Re
William Lee
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President Date 13 March 2015 Place Sydney The decision under review is affirmed.
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The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
PASSPORTS – issue – date of birth given on passport application different to that on applicant’s birth certificate – discretion to endorse a travel document – decision affirmed
LEGISLATION
Australian Passports Act 2005 (Cth) s 55
CASES
Minister for Foreign Affairs v Lee (2014) 142 ALD 567; [2014] FCA 927
SECONDARY MATERIALS
Australian Passports Determination 2005 s 9.2
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
13 March 2015
This application was remitted to the Administrative Appeals Tribunal for reconsideration by the Federal Court in Minister for Foreign Affairs v Lee (2014) 142 ALD 567; [2014] FCA 927, which upheld an appeal on a question of law that there had been an error in the decision of the Tribunal.
The earlier decision of the Tribunal found to have been made in error was that the applicant was entitled to be issued with an Australian passport which recorded his date of birth as 1962 and which also had an endorsement to the effect that he used a different date of birth.
An Instrument Evidencing Change of Name dated 14 September 1995, which was in evidence, states that the applicant had ceased to use the name Libero Prevato and instead had begun to use the name LEE WILLIAM. The document states that:
In the future my new name will be used in all documents, transactions and on all occasions.
That Instrument evidencing the change of name was registered in the Land Titles Office on 14 September 1995.
A certified copy of the Birth Certificate of the applicant, naming him as Libero Prevato, dated 1 December 2010 shows he was born on 7 May 1962. It is uncontested that this is the applicant’s date of birth.
A later Birth Certificate dated 25 June 2012 states the applicant, named as William Lee, was born on 7 May 1962, but contains the following endorsement:
The full name of the registered person was previously recorded as Libero PREVATO, formerly known as Lee William PREVATO, formerly known as Lee WILLIAM, formerly known as Libero William PREVATO, formerly known as William Libero PREVATO. Registrar 22 June 2012.
The registered person has also used the date of birth 14 Feb 1966.
Registrar 22 June 2012
There was also in evidence an affidavit by Ms Samantha Callinan of the Department of Foreign Affairs and Trade dated 3 May 2013. As at May 2013 Ms Callinan was currently Acting Assistant Secretary for the Passport Client Services Branch and an officer of the Department of Foreign Affairs and Trade.
She states that “[t]he Department maintains the integrity of Australian passports in a number of ways, including through the application process.” She refers to passports held previously by the applicant which showed his date of birth as 7 May 1962.
The decision of the respondent, made on internal review and in respect of which the application for review was made to this Tribunal, affirmed a decision not to issue an Australian passport to Mr Lee which referred to his date of birth as being 14 February 1966. The respondent further decided to refuse the request to issue an Australian passport that included as an observation that “The registered person has also used the date of birth 14 February 1966.”
In his request for internal review the applicant said that the inclusion of such an endorsement on his Australian passport that he “has also used the date of birth 14 February 1966” would assist him in explaining the discrepancy between the date of birth shown on his passport and that shown on other documents, such as his driver’s licence when he was travelling. The applicant’s driver’s licence, for example, showed his date of birth as being 14 February 1966.
Pursuant to section 55 of the Australian Passports Act 2005 (the Act) “[t]he Minister may endorse, or make observations on, Australian travel documents in the circumstances specified in a Minister’s determination.” Section 9.2 of Australian Passports Determination 2005 (the Determination) states “[i]n issuing an Australian travel document, the Minister may endorse, or make an observation on, that travel document to specify such particulars as the Minister thinks fit.”
The Department of Foreign Affairs and Trade has issued a policy entitled Alterations and Endorsements in Travel Documents (the Policy) for the purpose of guiding decision makers in exercising the discretion under section 55 of the Act and section 9.2 of the Determination. Ms Callinan’s evidence was that the Policy is consistent with international standards. The Policy states that endorsements “must not conflict with, or be used to try to alter any personal details on the bio-data page”.
In the present case I have had regard to the observations of Robertson J in Minister for Foreign Affairs v Lee (2014) 142 ALD 567; [2014] FCA 927 at [50], [53], [62] and [63], the evidence and material before me and the submissions of the applicant and the respondent. I have formed the view that it is clear in the present case that the applicant’s correct date of birth is 1962. To include an incorrect date of birth as an endorsement is inconsistent with the Policy because a reference in the passport to a date of birth known to be incorrect in order to explain the existence in other documents of an incorrect date of birth is outside the object of the Act and the purpose for which a passport is issued and is to make a statement about the practices and activities of the applicant, rather than about his identity. As His Honour points out at [5] of his judgment the principal function of a passport is to provide evidence of identity and citizenship of Australian citizens who are travelling internationally: see section 3 of the Act. A statement which refers to the incorrect date of birth is irrelevant and foreign to this purpose and would undermine the integrity of a passport.
In conclusion, having regard to the observations of Robertson J and for the above reasons, the decision under review is affirmed.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of The Honourable Brian Tamberlin QC, Deputy President ...................[sgd].....................................................
Associate
Dated 13 March 2015
Date of hearing 3 February 2015 Applicant Self-represented Solicitors for the Respondent Ms A McCormick, Minter Ellison
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