Wong and Minister for Immigration and Citizenship

[2007] AATA 1551

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1551

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0124

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER WONG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member

Date16 July 2007

PlaceSydney

Decision The decision under review is set aside, and the Tribunal directs that Mr Wong’s certificate of Australian Citizenship be amended under section 47 of the Act so as to read, in respect of his year of birth, 1914.

...................[sgd]...........................

Ms N. Isenberg
  Senior Member

CATCHWORDS

CITIZENSHIP – amendment to Certificate of Australian Citizenship – year of birth – Australian Citizenship Act 1948 section 47 – the decision under review is set aside

LEGISLATION

Australian Citizenship Act 1948 – section 47

CASELAW

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re Qureshi and Department for Immigration and Ethnic Affairs (1993) 32 ALD 373

Re Tran and Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231

Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910

REASONS FOR DECISION

16 July 2007 Ms N. Isenberg, Senior Member  

1.        The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) is the decision of the Minister for Immigration and Citizenship (“the Respondent”), dated 12 January 2007, not to amend the date of birth on Mr Wong’s Certificate of Australian Citizenship (“Certificate”).

BACKGROUND

2.        Mr Wong was born in China.  He graduated from the 14^th Term of Infantry Division, the 6^th General Group of Army Officers Academy in January 1939. In the early 1950’s, Mr Wong fled to Hong Kong as a refugee where he lived for a number of years, before arriving in Australia in 1987.

3.        On 28 February 1989, Mr Wong lodged an application for grant of Australian citizenship (T4). Included with his application was an Instrument Evidencing Change of Name with the Department, whereby he abandoned the use of the name “Peter Ke Che Wong” and adopted the name “Peter Wong” (T5).  On 20 September 1989 Mr Wong became an Australian citizen. The certificate listed his date of birth as 28 April 1916 (T4).

4.        In 2006, Mr Wong applied to have the year of birth on his certificate changed to 28 April 1914.

ISSUE BEFORE THE TRIBUNAL

5.        Whether the Applicant’s certificate of Australian Citizenship should be amended.

LEGISLATION

6. Section 47 of the Australian Citizenship Act 1948 (“the Act”) provides that the Respondent has the discretion to amend a certificate of Australian citizenship where the Respondent is satisfied it is desirable to do so.

7. The broad discretion contained in section 47 to amend a certificate of Australian citizenship is guided by the policy contained in the Australian Citizenship Instructions ("ACI").

8. Chapter 7.5 of the ACI relates to the amendment of Australian citizenship certificates for the purposes of section 47.

9.        Paragraph 7.5.2 of the ACI states the circumstances in which a citizenship certificate may generally be amended:

“Under the current policy guidelines, the Minister or his/her delegate may normally amend a citizenship certificate to:

·correct a departmental error that they are satisfied was made when the original certificate was issued

·reflect a gender re-assignment or

·delete the names of children.”

10.      The Tribunal will ordinarily apply policy like the ACI unless it is unlawful, or its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634).

EVIDENCE

11.      I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T Documents"), which I took into evidence. 

12.      Mr Wong gave evidence and was cross-examined on behalf of the Respondent.  I also asked him questions.

DISCUSSION OF EVIDENCE AND FINDINGS

13.      In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

14.      In support of his application, Mr Wong provided the following documents (with translations) that show his date of birth as 28 April 1914:

·Letter from Community Relations Commission enclosing Certificate of Academic Record of Applicant (T6)

·Letter from Taipei Economic and Cultural Office enclosing academic certificate of Applicant (T7)

·Letter from The Chinese Nationalist Party of Australia enclosing Certificate of Membership (T8)

15.      Mr Wong also provided a written statement which was interpreted at the hearing.  In essence he said that:

·He does not have a birth certificate because prior to the 1950’s China did not have a population register. There was also no population register in Hong Kong when he first arrived in the early 1950’s, and it was only after many Chinese refugees starting settling in Hong Kong that the Government began to record births and deaths.

·The only known document from China that records his date of birth is the letter from the Community Relations Commission enclosing his Certificate of Academic Record (T6).

·He wants to have the date of birth amended on his Australian citizenship certificate because he wants to reach 100 years of age. Because of his good health, Mr Wong indicated that when he reached 100 he would be an excellent example of how Australia (and the Australian lifestyle) “cultivates longevity in its people” and that he could become an inspiration for other people looking to ultimately retire to, and invest in, Australia.

16.      During his evidence, Mr Wong told me that his original certificate of academic record was burnt around 1950, before he fled from China to Hong Kong. Mr Wong requested a replicate of the original certificate in 1993 after attending a reunion of his military academy in China. This document records Mr Wong’s date of birth as 28 April 1914.

17.      Mr Wong also told me that he joined the Chinese Nationalist Party before leaving China in the 1950’s. The date of birth that the Chinese Nationalist Party of Australia had recorded for him was 28 April 1914 (T8).

18.      He said that when he was asked to record his date of birth details on the original application for a grant of Australian citizenship (T4), he recorded the year as 1916 because given the long passage of time, he had “forgotten” the year he was born. However, Mr Wong said that when he attended a reunion of his military academy in China in 1993, he realised that he had wrongly recorded his date of birth on the original application for a grant of Australian citizenship (T4).  When speaking with other students at the reunion, who had been in the same year as him, Mr Wong realised that he had wrongfully recalled and recorded his date of birth, and that he in fact was born in 1914.

19.      I asked Mr Wong if he could recall what year he had been born in according to the Chinese calendar, and he told me that he had been born in the year of the tiger. The interpreter confirmed that this approximately equates with the year 1914.

20.      In its Statement of Facts and Contentions, the Respondent contended that Mr Wong’s date of birth as stated on his certificate is not incorrect; that his date of birth is, in fact, the date listed on his application for grant of Australian citizenship; and that the Applicant's date of birth, as stated on his Australian passport, is 28 April 1916 (T12).  This document, however, was generated in reliance on his certificate of citizenship.

21.      In Re Qureshi and Department of Immigration and Ethnic Affairs(1993) 32 ALD 373 ("Qureshi") Senior Member Beddoe described the approach to be taken, at paragraph 20, as follows:

"I turn now to consideration of 47 of the Act in relation to the facts of this case. It seems to me that there are three steps in the process which I must undertake to decide whether an amendment should be made to the Certificate of Citizenship in   accordance with 47 of the Act. I first have to be satisfied that the date of         birth shown on the Certificate is incorrect. If I am satisfied that the date is incorrect it is not sufficient to merely substitute another date. Before another date can be substituted I have to be satisfied as to the correct date of birth. If I am satisfied as to the first and second steps I then have to be satisfied that it is desirable that the Certificate of Citizenship be amended."

22.      In Re Tran and Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231, the Tribunal considered the application of section 47 in the context of a request to amend an Applicant's date of birth and stated at 232:

"First, we have considered whether, on the evidence, we are satisfied whether the date of birth shown on the certificate reflects Mrs Tran’s actual date of birth. In reaching an answer on that first question does not automatically answer the second question. The second question is whether it is desirable for any reason to amend the certificate. That is the question posed by 47 itself. The section is not couched in terms of the certificates being accurate but in terms of the "desirability" of amendment."

23.      In Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910 ("Fung"), Deputy President Purvis stated at paragraph 11:

"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 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."

24.      The Respondent contends that in applying the third step of the Qureshi test, the Tribunal could not be satisfied that the date of birth shown on the citizenship certificate is incorrect.  Secondly, the Respondent contends that based on the current evidence, the Tribunal could not be satisfied as to the correct date of birth of the Applicant.  Thirdly, it was submitted by the Respondent that it is not desirable for the Applicant's Australian citizenship certificate to be amended.

25.      In accordance with the decision in Qureshi, I find that there is sufficient evidence for me to be satisfied that the Applicant’s date of birth shown on the citizenship certificate, (as amended by the delegate), was incorrectly recorded, based on the limited material available at the time. I also find that there is now sufficient evidence for me to be satisfied that 1914 is Mr Wong’s correct date of birth; and there is sufficient evidence for me to be satisfied that is it desirable that the certificate be amended to reflect Mr Wong’s correct date of birth, as 28 April 1914.

DECISION

26. The decision under review is set aside and the Tribunal directs that Mr Wong’s certificate of Australian Citizenship be amended under section 47 of the Act so as to read, in respect of his year of birth, 1914.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         [sgd]
  Associate

Date of Hearing  21 June 2007
Date of Decision  16 July 2007
Appearance for Applicant  Self-represented

Advocate for the Respondent                    Ms Tessa van Duyn