Yangnouvong and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 62

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No: N2004/567  

GENERAL ADMINISTRATIVE DIVISION		)
Re		SOMDETH YANGNOUVONG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member

Date21 January 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................

Ms R Hunt

Senior Member

CATCHWORDS

IMMIGRATION – s47 Australian Citizenship Act – Amendment of Australian citizenship certificate refused - Applicant’s date of birth – Whether desirable for any reason to amend the certificate - Application of departmental policy - No departmental error claimed

LEGISLATION

Australian Citizenship Act 1948 (Cth) s 47

CASE LAW

Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699

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 (18 October 2000)

REASONS FOR DECISION

BACKGROUND

21 January 2005 Ms R Hunt, Senior Member

1.On 5 March 1993, Mr Yangnouvong, the Applicant, applied for Australian citizenship. Citizenship was conferred on 19 July 1993 and Mr Yangnouvong was provided with a Certificate of Australian Citizenship.  Mr Yangnouvong’s date of birth was stated on the certificate as 4 January 1947. This was the date of birth indicated on the “Refugee and Special Humanitarian Program Nomination” form dated 6 March 1987 submitted by the applicant’s brother-in–law to the then Department of Immigration and Multicultural Affairs on 12 March 1987, as well as other documents. The Department’s records show Mr Yangnouvong subsequently arrived in Australia on 9 May 1989 from a refugee camp in Thailand.

2.Almost 15 years later, on 17 April 2003, Mr Yangnouvong applied to the Department of Immigration and Multicultural and Indigenous Affairs to amend his date of birth on the certificate to 2 January 1938.  That application was refused by the Minister’s delegate on 24 November 2003. Mr Yangnouvong seeks review of that decision by this Tribunal.

LEGISLATION

3.Section 47 of the Australian Citizenship Act 1948 provides:

“Amendment of Certificates

(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 affect as so amended.”

4.The Australian Citizenship Instructions state, at paragraph 7.5.5, that amendments under section 47 are to be made only in cases of departmental error. The instructions also state, in that same paragraph, that policy should not be applied inflexibly and if the particular circumstances of a case warrant the making of an amendment, then decision makers are able to venture outside policy guidelines. The Instructions are among the Tribunal documents furnished by the Department of Immigration and Multicultural and Indigenous Affairs.

EVIDENCE and SUBMISSIONS

5.Mr Yangnouvong’s evidence at a Tribunal hearing was that he had given all documents in his possession to the Department. In support of his request, he had provided a certified copy and an English translation of an “Extract from Certificate of Birth/Baptism” with the place of issue shown as Chao Khoueng in Vientiane Province, Laos. The certificate stated that it was issued on 22 October 1970 and the certified copy on 24 June 2002. The translation was dated 27 June 2002. This document shows the applicant’s place of birth as Ban Nase, Laos, and his date of birth as 2 January 1938.

6.Mr Yangnouvong said that when he returned to Laos for a visit in 2002, his sister, who was living in his father’s house in Ban Nase, told him of a box of documents she had. Among the documents was his original birth certificate. He took the certificate to the authorities in Vientiane and they issued him with the certified copy that he gave the Department. He no longer had the original and did not know where it was.

7.The Respondent’s counsel asked Mr Yangnouvong if he had signed the application for Australian citizenship that was before the Tribunal. Mr Yangnouvong said the application did bear his signature and he assumed an officer at Blacktown had filled out the form based on his documents from the UN and he had signed it. This application stated that Mr Yangnouvong was born in Thakhek, a place that Mr Yangnouvong told the Tribunal was located far away from Ban Nase. The application for citizenship further gave Mr Yangnouvong’s date of birth as 4 January 1947.

8.The Respondent’s counsel asked Mr Yangnouvong about events that had occurred in Laos and presented maps showing the location of Ban Nase and Thakhek. The maps showed these locations were distant from each other. Mr Yangnouvong was asked if he remembered the Japanese invading Laos. Mr Yangnouvong said he did remember, that the family had escaped into the jungle and that he had not yet started school when this occurred. He also said he started school when he was aged about six.  The Respondent produced historical records showing this event took place in 1945 when Mr Yangnouvong would have been aged around seven when the Japanese invaded if he had been born in 1938. Mr Yangnouvong also said that he remembered that the French came after the Japanese. The Respondent pointed out that the French had been in power before the Japanese and reasserted their control. Mr Yangnouvong responded that he did not know what had happened in the cities as he lived in the country.

9.Mr Yangnouvong also said he was unsure exactly when his children had been born as he had no documentation. He thought the dates set out in the “Refugee and Special Humanitarian Program Nomination” form dated 6 March 1987 were probably correct as to the years stated. He agreed that it was usual for Laotians to marry young and could not remember when he married except that the marriage took place three years before the birth of his first son. He said that it was correct that he would have been aged about 35 when his son was born and 32 when he married. He said he was over 10 years older than his wife.

10.Also before the Tribunal was Mr Yangnouvong’ s passport showing his date of birth as 4 January 1947. Further, the Respondent referred to an email response in November 2003 from an officer at the Australian post in Vientiane concerning the reliability of a reissued birth certificate. The Department’s officer had asked for a check to be made about the birth records and the post reported that the Laotian system was not very thorough or reliable. Further, a lack of official systems and no records check made it possible for documents to be ‘reissued’ on demand for a fee payment.

11.Mr Yangnouvong agreed that, if he was born in 1938, he would be eligible for the age pension. He denied that this was his motive for changing the record of his birth on his citizenship certificate. When asked whether he would apply for the age pension if his date of birth on his Australian citizenship were amended, he said that he would only ‘follow the law’.

FINDINGS and REASONS

12.On the evidence before me, I am not able to accept the applicant’s claim of his having been born in 1938 as claimed. In addition, I do not find that Mr Yangnouvong has cast sufficient doubt on the correctness of the existing Australian citizenship certificate to warrant amendment. Mr Yangnouvong’s evidence and recollection was vague and he was unable to produce the original certificate of birth which he claims he produced to the Laotian authorities in 2002. There are also other discrepancies in the account of where he was born when comparing the refugee form which was the basis for his entry to Australia and his citizenship application to the “reissued” birth extract. The place of birth differs in the new extract from the set of documents provided for migration in 1989 and for citizenship in 1993. He was originally said to have been born in Thakhek and not Ban Nase, a place Mr Yangnouvong has told the Tribunal is far away from Ban Nase where he now claims he was born.

13.In Re Celik and Department of Immigration, Local Government and Ethnic Affairs (1988) 17 ALD 699, the then Senior Member McMahon concluded that the Tribunal is not bound by the departmental guidelines and that should the error concerned be one made by the applicant, this does not act as a bar to the matter falling within the terms of those guidelines. The Senior Member thought that incorrect information should be corrected. This case has been followed numerous times by the Tribunal. For example, in the recent case of Braham and MIMIA [2004] AATA 539, Senior Member McMahon found that once an error has been proved and reliance is placed on the certificate by other official bodies, it should be corrected.

14.However, these circumstances do not exist in the present case. I am not satisfied on the balance of probabilities that Mr Yangnouvong’s certificate of citizenship contains an error as to his date of birth. It follows that the certificate should not be amended on this ground.

15.Further, in Re Tran and Department of Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 231, the Tribunal noted that should an error be found, on the balance of probabilities a second question must be satisfied, that being:

“... whether it is desirable for any reason to amend the certificate.  That is the question posed by section 47 itself.  The section is not couched in terms of the certificates being accurate but in terms of the “desirability” of amendment.” (At para 36).

16.As well, as to the question of desirability, the Tribunal in Tran’s case referred to Celik’s case and quoted:

“In my view, it cannot be thought that it is desirable for a certificate of Australian citizenship to contain information which has been proved to be incorrect.  Once that error has been proven, it cannot be said to be desirable that it should remain unaltered.  As reliance is placed upon details in official documents by other official bodies, and by citizens having dealings with the holder of an official document…it is desirable, in my view, that all statements of fact appearing on the face of that document should be as accurate as one can reasonably expect in human affairs.” (At para 42).

17.In Fung and Department of Immigration and Multicultural Affairs [2000] AATA 910, Deputy President Purvis said:

“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 section 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.” (At para 11.)

18.Having regard to the decisions of the Tribunal noted above and to the doubts about any error in the citizenship certificate as it stands, I consider that there is no reason making it desirable that the certificate be amended.

Decision

19.The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.

Signed:          .............................................................................
  Associate: Reuben Mansour

Date of hearing  11 January 2005
Date of decision     21 January 2005
Representative for the Applicant  Self Represented

Solicitor for the Respondent  Australian Government Solicitor