William Lee and Minister for Foreign Affairs
[2014] AATA 159
[2014] AATA 159
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5577
Re
William Lee
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal Ms Naida Isenberg, Senior Member Date 24 March 2014 Place Sydney The decision under review is varied. I find the correct and preferable decision to be that:
(a) The applicant is not entitled to be issued with an Australian passport which records xx xxxx 1966 as his date of birth.
(b) The applicant is entitled to be issued with an Australian passport which records his date of birth as xx xxxx 1962 but which contains an endorsement to the effect that the applicant has also used the date of birth xx xxxx 1966.
......................[sgd]..................................................
Ms Naida Isenberg, Senior Member
CATCHWORDS
PASSPORTS – issue – date of birth given on passport application different to that on applicant’s birth certificate – discretion to include an endorsement – decision varied
LEGISLATION
Australian Passports Act 2005 ss 7, 8, 43, 53, 55
SECONDARY MATERIALS
Australian Passports Determination 2005
International Civil Aviation Organization, ICAO Document 9303: Machine Readable Travel Documents, Part 1 (Sixth edition, 2006)
REASONS FOR DECISION
Ms Naida Isenberg, Senior Member
24 March 2014
BACKGROUND
William Lee, the applicant, previously held three Australian passports, two in the name of Libero Prevato, and one in the name of William Lee. The latter passport expired on 22 September 2005. The applicant lodged an application for another passport dated 30 July 2012. His application was refused as the respondent was not satisfied of the applicant’s identity. That decision was affirmed on internal review and the applicant seeks review of the decision.
RELEVANT LAW
The Australian Passports Act 2005 (“the Act”) provides for the issue of Australian travel documents, including passports.
Section 8 of the Act states:
Before issuing an Australian passport to a person, the Minister must be satisfied:
(a) that the person is an Australian citizen; and
(b) of the identity of the person.
Note:See sections 42 and 43 for details about how the Minister satisfies himself or herself of an Australian passport applicant’s citizenship and identity.
Section 43 provides that, without limiting the Minister’s ability to request information under subsection 42(1), a Minister’s determination may specify the kinds of personal information that may be requested by the Minister for the purpose of Part 2 of the Act. For the purposes of subsection 43(1) of the Act, s 7.2 of the Australian Passports Determination 2005 (“the Determination”) provides:
(1)For subsection 43(1) of the Australian Passports Act, the kind of personal information that may be requested by the Minister for the purpose of Part 2 of the Australian Passports Act in relation to an application of a particular kind is the information mentioned in the application form for applicants of that kind.
(2)For subsection 43(1) of the Australian Passports Act, the Minister may request the following kinds of personal information for the purpose of satisfying himself or herself of the person’s identity under paragraph 8(b) of the Australian Passports Act:
(a)the person’s name as shown in records held by the Registrar of Births, Deaths and Marriages of an Australian State or Territory or by the Department of Immigration and Citizenship;
(b)the person’s date of birth as shown in those records;
(c)the person’s place of birth as shown in those records;
(d)the person’s sex as shown in those records.
Where the Minister (or delegate) is satisfied of a person’s identity and decides to issue the person with an Australian travel document, the form in which the Australian travel document is issued must be in accordance with s 53 of the Act. Section 53 provides, relevantly:
…
(3)The name of the person to whom an Australian travel document is issued must appear on the document. Except in the circumstances specified in a Minister’s determination, the name must be:
(a)the name on the person’s birth certificate; or
(b)the name on a notice given to the person under section 37 of the Australian Citizenship Act 2007; or
(c)the name on a certificate, entry or record of the person’s marriage, being a certificate granted or entry or record made by the Registrar of births, deaths and marriages (however described) of a State or Territory; or
(ca)the name on a certificate, entry or record relating to the registration of the person’s relationship with another person, being a certificate, entry or record:
(i)issued or made under, or for the purposes of, a law of a State or Territory prescribed for the purposes of section 2E of the Acts interpretation Act 1901; and
(ii)relating to a kind of relationship prescribed for the purposes of that section; and
(iii)issued or made by the Registrar of births, deaths and marriages (however described) of the State or Territory concerned; or
(d)the name included, by way of effecting a name change of the person, on a register kept under a law of a State or Territory by the Register of births, deaths and marriages (however described) of the State or Territory.
Section 55 of the Act provides that the Minister “may endorse, or make observations on, Australian travel documents in the circumstances specified in a Minister’s determination”. For the purposes of s 55 of the Act, s 9.2 of the Determination provides:
In 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.
CONSIDERATION
The applicant provided written submissions, as did the respondent. The respondent also provided an affidavit by Ms Callinan, the Acting Assistant Secretary in the Passport Client Services Branch of the Department of Foreign Affairs and Trade.
Should the applicant be issued with a passport which records his date of birth as xx xxxx 1966?
There was no dispute that the applicant has previously held the following Australian passports:
·Australian passport issued on 20 September 1983 in the name of Libero Prevato, and expired on 20 September 1988;
·Australian passport issued on 13 September 1985 in the name of Libero Prevato, and expired on 13 October 1985;
·Australian passport issued on 22 September 1995 in the name of William Lee, and expired on 22 September 2005.
These passports were issued showing the applicant’s date of birth as xx xxxx 1962.
The applicant also previously lodged a passport application dated 6 December 2010 (“the 2010 application”) wherein he stated that his date of birth was xx xxxx 1966. The applicant provided copies of the following documents in support of the 2010 application:
·copy of a birth certificate for Libero Prevato, issued by the NSW Registrar of Births, Deaths and Marriages on 1 December 2010 showing the applicant’s date of birth as xx xxxx 1962;
·copy of an instrument Evidencing Change of Name from Libero Prevato to William Lee, issued by the NSW Land Titles Office on 14 September 1995 in which the applicant had declared that his date of birth was xx xxxx 1966.
On 10 February 2011 and 1 April 2011, the Department wrote to the applicant advising that a new passport could not be issued at that stage as the date of birth on the 2010 application did not match the date of birth on his birth certificate. The applicant was requested to complete a new form stating his correct date of birth within 28 days but he did not respond. As a result the 2010 application did not proceed to determination.
On 30 July 2012 the applicant lodged an application for an Australian passport. There he stated that his date of birth was xx xxxx 1966. As evidence of his Australian citizenship the applicant provided a copy of a birth certificate in the name William Lee issued by the NSW Registrar of Births, Deaths and Marriages on 25 June 2012. That birth certificate shows the applicant’s date of birth as being xx xxxx 1962. It also contains the following endorsements:
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 xx xxxx 1966. Registrar 22 June 2012.
The delegate refused to issue the applicant with a passport on the basis that he was not satisfied of the applicant’s identity, as the date of birth appearing on the applicant’s birth certificate – xx xxxx 1962 – did not match the date of birth given on the applicant’s passport application form – xx xxxx 1966.
In his internal review application, the applicant requested that he be issued with an Australian passport containing an observation in virtually the same terms as it appeared as an endorsement on his 2012 birth certificate.
The internal review officer affirmed the decision not to issue an Australian passport that showed his date of birth as xx xxxx 1966. However, she indicated that subject to the applicant’s agreement, she would be willing to issue the applicant with a passport, albeit one that showed his date of birth as xx xxxx 1962.
The applicant in his submissions no longer sought the endorsement to which he had referred in his internal review application and now seeks a passport showing his date of birth as xx xxxx 1966 “the same as the one on my more recent passport”, namely that issued on 22 September 1995. In fact, from the information he provided, his passport application for that passport had xx xxxx 1966 as his birth date, and the instrument evidencing his change of name recorded his date of birth as xx xxxx 1966. Ms Callinan provided detailed evidence of a search for the applicant’s passport as claimed, and I am satisfied that no passport has previously been issued to the applicant which records his date of birth as xx xxxx 1966.
The respondent accepted that, as an Australian citizen, the applicant is entitled to be issued with an Australian passport, subject to the Minister being satisfied of his identity. Ms Callinan’s evidence noted the proof of identity procedures which are conducted as part of the application process. An applicant for a passport must establish identity in accordance with the Department’s policy, an extract of which she attached in relation to how this may be done. She said that the person interviewing an applicant for a passport must check the applicant’s birth details as set out in their application against, relevantly, an original birth certificate. She supplied a relevant extract from the respondent’s Online Passport Information. Information provided by an applicant from cardinal documents (which includes birth certificates) is subject to on-line validation in accordance with the Department’s Online Passport Information policy document, and she annexed a copy of that also.
The applicant’s driver’s licences – issued since at least 2000 – show his date of birth as being xx xxxx 1966. It is unclear how this might have been issued in circumstances where his birth certificate shows that his date of birth is xx xxxx 1962, which I accept was the date recorded when his birth was registered.
The birth certificate issued on 25 June 2012 contains an endorsement stating that “The registered person has also used the date of birth xx xxxx 1966”. These words simply mean what they say – that the applicant has also used xx xxxx 1966 as his birth date; it is not a correction of his birth certificate to change the date of birth, but merely a recognition that the applicant chooses, or has chosen, for reasons best known to him, to use another birth date.
On the basis of the available information, I find that, on balance, the applicant’s correct date of birth is xx xxxx 1962 as stated in his birth certificate and not xx xxxx 1966 as recorded on his driver’s licence and perhaps used by him elsewhere. Therefore I find, under s 7 of the Act, that the applicant was not entitled to be issued with an Australian passport showing a date of birth of xx xxxx 1966.
Should the applicant’s passport contain an endorsement?
The respondent referred to its policy titled “Alterations and endorsements in travel documents” which provides guidance for decision makers in exercising the discretion under s 55 of the Act and s 9.2 of the Determination, and was included in the “T” documents. The policy provides that endorsements “must not conflict with, or be used to try to alter any personal details on the bio-data page”. The respondent submitted, and I accept, that the policy is consistent with international standards relating to the content and format of international travel documents. One requirement is that the passport holder’s date of birth be “as recorded by the issuing State”: ICAO Document 9303: Machine Readable Travel Documents which is annexed to the Convention on International Civil Aviation.
I do not consider that an endorsement that “has also used the date of birth xx xxxx 1966” to be inconsistent with the policy or the international obligations the policy reflects. As discussed above, such an endorsement is unequivocal in its terms – it is only that the applicant has used a different date of birth. Further, it could possibly even be said, that in any event such an endorsement precisely accords with the information on his birth record.
The respondent submitted that there is a public interest in ensuring the integrity of Australian passports as an identity document, including to aid in the prevention of identity theft and passport fraud. I unreservedly agree. However, I do not accept that this objective would be undermined if the inclusion of an endorsement or observation would result in conflicting dates of birth being shown in a passport. Only one date of birth is shown. The endorsement merely acknowledges that the applicant has used another date of birth too.
I accept that having a s 55 endorsement on his passport that he “has also used the date of birth xx xxxx 1966” would assist the applicant in explaining the discrepancy between the date of birth on his passport, and that in other documents such as his driver’s licence.
The respondent submitted that there are no special circumstances in the applicant’s case which would warrant a departure from its policy in relation to endorsements and observations, or that would override the public interest in protecting the integrity of passports as documents of identity. Having found that the endorsement is not inconsistent with the policy, this submission falls away.
DECISION
The decision under review is varied and I find the correct and preferable decision to be that:
(a)The applicant is not entitled to be issued with an Australian passport which records xx xxxx 1966 as his date of birth.
(b)The applicant is entitled to be issued with an Australian passport which records his date of birth as xx xxxx 1962 but which contains an endorsement to the effect that the applicant has also used the date of birth xx xxxx 1966.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member ...................[sgd].....................................................
Associate
Dated 24 March 2014
Hearing on the papers 10 March 2014 Applicant Self-represented Solicitors for the Respondent Minter Ellison
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