Wells v Registry of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2016-08-25

Introduction

Mr Wells has applied to review a decision of the Registrar of the Registry of Births, Deaths and Marriages (the agency) to refuse his application to register a change of name from Ben Wells to Benjamin Pue William MEYER. That decision was affirmed on internal review on 30 December 2015.
Essentially, the request was refused on the basis that this was Mr Wells' fourth request for a change of name, and, in those circumstances, the agency was not satisfied that the proposed change warranted registration.

Previous names and changes

The applicant was born in 1959 in Vaitoomuli, Western Samoa, with the name Pue SU FUI.
The NSW Registrar has previously registered three changes of name for the applicant:

In 1998, from Pue SU FUI to Benjamin Pue SU.
In 2001, from Benjamin Pue SU to Benjamin Pue William MEYER.
In 2007, from Benjamin Pue William MEYER to Ben Wells.

On 16 August 2013 Mr Wells applied to the RBDM to change his name from Ben Wells to Benjamin Pueomanu William MEYER. On that application Mr Wells stated that his date of birth was 6 March 1959 and that his names at birth were Pueomanu Benjamin MEYER. During this process the RBDM wrote to Mr Wells seeking clarification as to why he had at different times, provided documents showing 2 different birth dates - 21 June 1959 and 6 March 1959. This application did not proceed.

Evidence of Australian Citizenship

On 18 March 2004, Ben Wells acquired Australian Citizenship in the name of Benjamin Pue William MEYER. This was also his RBDM registered name at that time.
Mr Wells made 2 applications to the Department of Immigration and Border Protection (DIBP) for evidence of Australian citizenship in the name of Benjamin Pue William MEYER in June and September 2013. By this time he had changed his name to Ben Wells with the NSW RBDM (in 2007). These applications were refused by DIBP, in part because Mr Wells had provided 2 different birthdates in his applications - 21 June 1959 and 6 March 1959.

Application for Review in the Tribunal

Mr Wells filed an application to review the RBDM's internal review decision of 30 December 2015 with the Tribunal on 27 January 2016.
Section 56 of the Births, Deaths and Marriages Registration Act 1995 provides a right to seek such a review from the Tribunal. When this section is read with s 38 of the Administrative Decisions Tribunal Act 1997, it confers jurisdiction on the Tribunal to hear and determine Mr Wells' review application.
The Tribunal's role is to make the correct and preferable decision. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
The standard of proof that applies in these proceedings is set out in section 140 of the Evidence Act 1995 as "on the balance of probabilities." 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
At a directions hearing in relation to the Application, the Tribunal set a timetable for the filing of materials by the parties. The Tribunal then considered the matter on the papers.

Documents before the Tribunal

The Tribunal had before it:

The Applicant's application for review and annexures
The Respondent's section 58 documents
The Applicant's Statutory declaration dated 7 April 2016
The Respondent's written submissions dated 4 May 2016

The Legislation

Part 5 of Division 4 of the Births, Deaths and Marriages Registration Act 1995 is concerned with the registration of changes of names on birth certificates. Section 26 provides that a person's name may be changed by registration. Section 27 makes provision for the making of applications for changes by adults.
Section 29B establishes restriction on the number of changes a person can request. It provides- 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: (a) a change of the person's name has been registered (whether in this State or in another State) within the period of 12 months immediately preceding the date of the application, or (b) 3 or more changes of the person's name have been registered (whether in this State or in another State).
Section 27(2) then makes provision for exceptions to that general rule. It provides - (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 (b) without limiting paragraph (a), the Registrar is satisfied that the proposed change of name is sought for the protection of the person, the person's children or anyone else associated with the person, or (c) the proposed change of name is because of the marriage of the person, or (d) the District Court has approved the proposed change of name on application under section 28 (4).

The issue

The only exception to the bar on the Registrar registering a fourth change of name which appears to be relevant to Mr Wells' circumstances is whether the Tribunal should be satisfied that "the reason for the proposed change of name warrants the registration of the change of name."
The Tribunal also notes that Section 30(b)(1) of the RBDM Act provides that, before registering a change of name, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction that the change of name is not sought for a fraudulent or other improper purpose.

Mr Wells' reasons for the proposed change

Mr Wells has provided both the agency and the Tribunal with various explanations of his reasons for wishing to change his registered name on his birth certificate. These are contained in his original application for a change of registration, his application for internal review and his application to the Tribunal.
On the application form to register a change of name dated 20th of April 2015, Mr Wells provided the following reasons for changing his name: "My name Benjamin Pue William Meyer is on my citizenship certificate as well as all the government records like Centrelink and child support documents so as the electoral roll of Australia. So I want to use that name mentioned above instead of Ben Wells."
In a statutory declaration accompanying his application dated 20th of April 2015 Mr Wells states: "I want to use my birth name Benjamin Pue William Meyer as my current name as this name is on the government records I do solemnly declare that this is the last time I will change my name. This name is also on my citizenship certificate. Thank you"
In a further statutory declaration provided 23rd of October 2015, Mr Wells states: 1. My date of birth is 21 June 1959. 2. My full name at birth was Pue Su Fui. 3. The birth certificate issued in 1984 is the original and the correct one with my correct date of birth. The birth certificate issued in 2013 has my wrong date of birth which stated 6 March 1959 and I sent it back to Samoa to be corrected. The birth certificate issued on 5th of May 2014 was issued with my correct date of birth 21.06.1959. 4. It was a mistake by myself making that application in 2013 with the date of birth stating 6 March 2013. (sic) 5. I send the wrong birth certificate via mail and a letter to the registrar of births deaths and marriages in Samoa in early 2014 telling him that they made a mistake with my date of birth.
In a second statutory declaration made on 23 October 2015 Mr Wells states: "I am aware that this is the fourth and swear under oath that this will be my last change of name. I want to be known as Benjamin Pue William Meyer as recorded before and because this is the name on my citizenship certificate. I am also trying to retrieve my RSA certificate in order to gain employment the course I took at the TAFE in the name Benjamin Meyer. I am also still enrol at the Australian Electoral Commission to vote on the State and Federal elections as Benjamin Pue William Meyer."
The Tribunal also had before it a letter dated 3 July 2013 from the Australian Electoral Commission stating that Mr Benjamin MEYER's enrolment details showed his name as Benjamin Pue William MEYER.
The Tribunal had before it a letter dated 18 June 2015 from the Electoral Commission New South Wales addressed to Benjamin Meyer stating he was now enrolled to vote.
The Tribunal also had before it an RSA certificate issued by Justice, Office of Liquor, Gaming and Racing on 18th of August 2015 which certifies that "Mr Meyer, Benjamin" has successfully completed the RSA course.
The Tribunal had before it a copy of an Australian passport issued on 20 November 2007 in the name of Ben Wells, a driver licence New South Wales in the name of Ben Wells to expire on 21 April 2017 and a Medicare card valid to July 2019 in the name of Ben Wells.
In a statutory declaration dated first of May 2014 Mr Wells stated amongst other matters, "I do not wish to change my name in the future."
In a letter to the Registry of Births Deaths and Marriages dated 16th of November 2015, received at the BDM registry on 24 November 2015, Mr Wells states amongst other matters: "over the last two years I tried my very best to have my name changed to the above name (Benjamin Pue William Meyer) but was unsuccessful. The name Benjamin Pue William Meyer was registered and I used to use that name. This name is also registered on my citizenship certificate, also on the Australian electoral role was so as the Electoral Commission New South Wales. This name is also on all of my government documents such as tax, human services as well."
Attached to his application for review in the Tribunal, the applicant provided a statement as follows: "2. The applicant acknowledges he has made three former applications to have his name changed. The applicant comes from Samoa and cultural protocols have been the basis of the former name changes. The first change was the applicant taking on his father's surname MEYER. The second change was reflecting his father's Chief title in accordance with the chiefly system of "Maitai". The third change reflected the correct spelling of his father's "Maitai".
The Applicant wishes to change his name to his original birth name Benjamin Pue William MEYER.
The Applicant has recently undertaken a course at TAFE New South Wales in the responsible service of alcohol RSA and because his driver's licence is issued in his current registered name Ben Wells and he undertook a course in the name of Benjamin MEYER, an RSA certificate is unable to be issued. The applicant has been offered work in a hotel in Bomaderry but has been unable to accept the offer due to problems surrounding the issue of his RSA certificate. The name on his driver's licence and birth certificate differ and therefore the RSA certificate cannot be issued until the applicant has his proposed name change registered with the Registry of Births Deaths and Marriages. The applicant is currently unemployed and eager to enter the workforce as soon as possible. The non-issue of the certificate is impeding his ability to gain employment in the hospitality industry.
The applicant has also been fined for not voting in an election due to his identification (drivers licence) and electoral enrolment being in different names. In order to be able to move forward with his career and comply with the State and Federal laws the applicant requires the name he was given at birth to be reregistered.
We contend that this is not a new name change but the applicant reverting back to the name he was given at birth pursuant to section 29 (C) of the act the applicant respectfully request discretion is exercised and the applicant's name can be registered as Benjamin Pue William Meyer."
The Applicant provided a further statutory declaration dated 7 April 2016 in which he stated: "I acknowledge that I have had three former name changes. I am of Samoan descent and the basis of these name changes have been in accordance with Samoan cultural protocols. "Benjamin Pue William MEYER" is my birth name and the name on my Australian citizenship certificate. I have had 2 significant injuries through no fault of my own, which have prevented me from working since August 2010 (in August 2010 I was involved in a work place accident which involved a serious injury to my back and subsequent surgery and in July 2014 I was involved in a motor vehicle accident resulting in further injuries to my back and an unsuccessful surgery, leaving me unable to walk without crutches). These events lead to the deterioration of my relationship with my wife and children. Despite this hardship I am determine to for my life to move forward in a positive direction. I am eager to return to the workforce. I completed Certificate III in Tourism and Hospitality Management at TAFE NSW in 2015 (see the attached certified copies of my certificate of participation dated 2 November 2015, Responsible Service of Alcohol dated 18 August 2015 and a transcript of my academic record dated 21 December 2015) which are issued in the name of Benjamin MEYER. I have been offered employment in the hospitality industry that I am unable to accept as there are issues surrounding the grant of my RSA certificate due to my registered name and the name that I use differing. My youngest daughter's surname is MEYER. I want my youngest daughter to carry on my birth name and legacy and in order to do this I respectfully request my name change is granted. It is with the upmost sincerity and respect that I request my name is registered as Benjamin Pue William MEYER."
The Tribunal adopts the Respondent's summary of his reasons for the name change in his application subject to this review as follows. a. The applicant is known as either Benjamin Pue William Meyer or Benjamin Meyer on various government records. Those records include the applicant's Australian Citizenship Certificate, Centrelink records, child support documents, the Australian Electoral Roll, the Electoral Commission of NSW, and "Tax" and "Human Services" documents. The Applicant states that he has been fined for not voting in an election because the name on his driver's licence (Ben Wells) does not match his name on the electoral rolls (Ben MEYER). b. The applicant enrolled in a course with TAFE NSW in the responsible service of alcohol under the name Benjamin MEYER, and TAFE NSW has now issued a Responsible Service of Alcohol ("RSA") certificate in the name Benjamin MEYER, but not Ben Wells. The applicant says that this discrepancy has prevented him from accepting employment that has been offered. c. The applicant requests the name change "in order" for his youngest daughter (whose surname is MEYER) to "carry on" the applicant's "birth name and legacy".

The Respondent's Submissions

The Respondent provided written submissions dated 4 May 2016. The Tribunal summarises those submissions as follows.
There have been three previous changes of name by Mr Wells. Further, in August 2013, he applied to change his name from Ben Wells to "Benjamin Pueomanu William MEYER" and declared his date of birth to be 6 March 1959. When the Registrar queried this date of birth in May 2014, Mr Wells provided a statutory declaration which said that there had been a mistake made by the Registrar of Births Deaths and Marriages in Samoa; he had sent back the wrong birth certificate and that his correct birth date was 21 June 1959.
Mr Wells then made a further application to RBDM in April 2015 wishing to change his registered name to "Benjamin Pue William Meyer." He submitted documents with this application which demonstrated that he is known as Ben Wells to Medicare, in his passport, in his New South Wales driver's licence, with the New South Wales Department of Family and Community Services, to the Australian Tax Office and New South Wales Fair Trading as Ben Wells. He was known however as Benjamin MEYER to the Electoral Commission.
The Registrar of Births Deaths and Marriages again asked Mr Wells why he had previously stated that his birthdate was 6 March 1959. Mr Wells provided a statutory declaration dated 8 May 2015 declaring that the mistake had been made in the office of the Registrar of births deaths and marriages in Samoa.
The Respondent referred to the fact that Mr Wells had obtained citizenship on 18 March 2004 in the name of "Benjamin Pue William Meyer". He had then applied to change this evidence of citizenship in June 2013 to "Benjamin Pueomanu William Meyer" date of birth 6 March 1959. He had then submitted another request to the DIBP on 6 September 2013 providing what purported to be a Samoan birth certificate which stated that his date of birth was 6 March 1959. This new evidence of citizenship was not granted as the DIBP could not authenticate the birth certificate.
The Respondent referred to the contention that in seeking to have a change of name from Ben Wells to "Benjamin Pue William Meyer", the Applicant was only seeking a reversion to a previous name and therefore this application did not count as a fourth change of name. Such an argument had specifically been rejected by the Tribunal in the matter of Mellini - see Mellini v Registrar, Registry of Births, Deaths & Marriages [2012] NSWADT 215.
In that matter the Tribunal found that reversion to a previous name was still a change of name for the purposes of section 29B of the BDMR Act.

Relevant provisions of BDMR Act

Section 29B of the BDMR Act provides that 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 provides limited exceptions to the limitations imposed in s. 29B. Specifically, s. 29C provides that the Registrar: "may register a change of name of a person despite any restriction...imposed by Section 29B if: (2)(a) the Registrar is satisfied that the reason for the proposed change of name warrants the registration of the change of name...."
Section 30(b)(1) provides that, before registering a change of name, the Registrar may: "require the applicant to provide evidence to establish to the Registrar's satisfaction: (b) that the change of name is not sought for a fraudulent or other improper purpose...."

Previous Tribunal decisions - the Case Law

The Respondent contended that it was Mr Wells' current personal preference to have the name "Benjamin Pue William MEYER." The matter of Ezekeil v Registrar of Births, Deaths and Marriages [2011] NSWADT 137 is authority for the principle that an applicant's personal preference, likes or dislikes is not sufficient to warrant registration. At the same time in the matter of Terzic see Terzic v Registrar of Births Deaths and Marriages [2013] NSWADT 82, Deputy President Hennessy said that each application must be determined on its own merits.
The Respondent cited AHH at [15] and Turkman at [22], as authority for the principle that if an applicant relies upon potential harm as a reason for warranting registration of a name, the Applicant ought to demonstrate that the applicant has taken action to avoid such anticipated harm.
In this respect Mr Wells had not brought any evidence of having applied to government agencies to change his name. Further he was already known as Ben Wells to a number of government agencies. Mr Wells had not demonstrated that he had asked TAFE to issue him with an RSA certificate in the name of "Benjamin MEYER". See AHH v NSW Registry of Births, Deaths and Marriages [2011] NSWADT 267 and Turkman v Registrar, NSW Registry of Births Deaths & Marriages [2011] NSWADT 258
Mr Wells' stated wish to have the same name as his child did not provide sufficient grounds to warrant registration of a change of name. See Turkman v Registrar, NSW Registry of Births Deaths & Marriages [2011] NSWADT 258 at [17] and [21]
The Respondent argued that there was a risk that the Applicant seeks his fourth change of name registration for some fraudulent purpose. Section 6 (a1) of the BDMR Act imposes a general duty on the Registrar to prevent identity fraud. Further the Registrar must be satisfied under section 30 (1) of the BDMR Act that the applicant is not seeking to change the applicant's name for fraudulent or improper purposes. The Respondent submitted that the Registrar could not be so satisfied, given Mr Wells' previous submission of an incorrect birthdate. Mr Wells had provided a statutory declaration of his own volition stating his date of birth was 6 March 1959. He had further told an officer of the DIBP in September 2013 that his birthdate was 6 March 1959. He had blamed the mistake on the Registrar of births deaths and marriages in Samoa. Further the DIBP had been unable to authenticate the purported Samoan birth certificate provided by Mr Wells.
The Respondent submitted that this was evidence of dishonesty in his dealings with both the RBDM and DIBP in relation to his date of birth. Further he had been dishonest in his failure to change his name with all government agencies. On this basis there was a risk of improper or fraudulent purpose and that Mr Wells may behave with an improper or fraudulent purpose in the future.

Findings of fact

The Tribunal has before it a copy of a document CERTIFIED COPY OF ENTRY OF BIRTH IN THE REGISTRAR GENERAL'S OFFICE dated 6TH June 1984 from Western Samoa. The document records the birth of a male child "Christian or first name" PU'E to father Su Fui and mother Peto Su Fui. As such, the document does not ascribe a last or surname to the child. The Tribunal understands however that this document relates to the applicant Mr Wells.
Mr Wells changed his name in NSW from PUE SU FUI to Benjamin Pue SU on 21st of May 1998. In his application he declared both his old name and his name at birth to be PUE SU FUI.
On the basis of all of the information before it the Tribunal finds that the Applicant Mr Wells was born on 21st of June 1959 in Western Samoa with the name Pue SU FUI.
The Applicant then changed his name for the second time in NSW on 16 January 2001 from Benjamin Pue SU to Benjamin Pue William MEYER.
In November 2007 the Applicant changed his name from Benjamin Pue William MEYER to Ben Wells. This was Mr Wells' third registered change of name in NSW.
The Respondent set out accounts of Mr Wells' dealings with RBDM and DIBP in 2013 and 2014 which were not contested by Mr Wells, as follows: "On 20 June 2013, the applicant lodged an application for evidence of Australian citizenship with the DIBP, under the name "Benjamin Pue William MEYER." In that application, the applicant listed his date of birth as 6 March 1959. On 25 June 2013, the DIBP rejected the applicant's application for evidence of Australian citizenship under the name "Benjamin Pueomanu William MEYER", because the identity documents that he had submitted along with his application were in the name Ben Wells. On 6 September 2013, the applicant made another application to the DIBP for evidence of Australian citizenship, this time in the name "Benjamin Pueomanu William MEYER". In that application, the applicant requested to amend his date of birth from 21 June 1959 to 6 March 1959 and, in support of that request, submitted a document that the applicant claimed was a copy of his birth certificate issued in Samoa. The DIBP was unable to authenticate the version of the applicant's birth certificate that listed his date of birth as 6 March 1959. On 18 September 2013, the DIBP contacted the applicant to discuss his 6 September 2013 application. In that discussion, when questioned about his date of birth, the applicant stated that his actual date of birth was 6 March 1959, and that other government records reflecting a 21 June 1959 birth date were in error. On 2 October 2013, the DIBP rejected the applicant's application for evidence of Australian citizenship under the name Benjamin Pue William MEYER, partly because the DIBP was "not satisfied that [the applicant's] date of birth is 6 March 1959".
On 8 May 2015, the applicant replied to a letter of 30 April 2015 from RBDM concerning his submission of 2 different birthdates by submitting a statutory declaration stating the following: "In 2014 I asked my brother to send me a copy of my Birth Certificate in which the Immigration request as I apply for a copy of my Citizenship Certificate unfortunately for some reason someone make an error in the Office of the Births Deaths and Marriages in Samoa entering a wrong date of birth for my Birth Certificate which shown on the copy you attached on 6 March 1959. I only find out when your Office and the Immigration office notified me. I sent that copy back and rectify their mistake so I now have that copy of my Birth Certificate with my correct date of birth which is 21st June 1959 not 6th of March 1959."
Mr Wells blamed the "mistake" about his birthdate on the Registrar of births deaths and marriages in Samoa. There was an opportunity for Mr Wells to explain to the Tribunal in his submissions, why in August 2013 he had come to the new honest belief that his date of birth was not as previously stated in his dealings with RBDM and DIPB 21 June 1959, but was instead 6 March 1959. He did not do so. The Tribunal finds that Mr Wells had provided a statutory declaration of his own volition stating his date of birth was 6 March 1959 to RBDM in August 2013 and to DIBP in June and September 2013. He had further told an officer of the DIBP in September 2013 that his birthdate was 6 March 1959.
The Tribunal finds on the basis of the information before it that Mr Wells deliberately informed the RBDM and the DIBP in 2013 and 2014 that his date of birth was 6 March 1959 - knowing this to be untrue.
The Tribunal also notes that Mr Wells has provided a CERTIFIED COPY OF ENTRY OF BIRTH IN THE REGISTRY OFFICE of Samoa showing that PUEOMANU BENJAMIN Meyer born 21 June 1959 had a previous name in the register of PUE BENJAMIN Meyer.

Consideration

The issue for determination in this case is whether the Tribunal on review, standing in the shoes of the Registrar, should be satisfied that that the reasons advanced by Mr Wells for the change of name warrants the registration of the change under s 29C(2)(a) of the Act.
In submissions, the agency characterised Mr Wells' reasons for seeking the change as being that the name he currently prefers is different to that which is registered. In the statutory context of the Births, Deaths and Marriages Registration Act 1995, the Tribunal accepts that having reached the statutory cap on the number of name changes set by s 29B, Mr Wells must 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. In previous matters the Tribunal has found that personal preference, likes or dislikes, is insufficient to enliven the discretion. There must be some ground or circumstance over and above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory.
The reasons advanced by Mr Wells for again wishing to change his registered name are substantially focussed on matters associated with his personal preference. As a result the Tribunal finds that Mr Wells has not advanced a sufficient reason to warrant changing the register.
Further, The Tribunal is not satisfied that Mr Wells has been honest about his reasons for informing RBDM and DIBP that his birthdate was 6 March 1959 when in all previous dealings he had maintained it was 21 June 1959 - the date to which he has now reverted. In the absence of a reasonable explanation for this the Tribunal is not satisfied in terms of section 30 that the change sought is not for a fraudulent purpose.

Conclusion

Having regard to all of the submissions discussed above, including: 1. the Applicant's failure to provide evidence explaining why he is unable change his name to Ben Wells before the entities that currently know him as Benjamin MEYER; 2. the insufficiency of the Applicant's personal preference as providing the reasons for a change of name, particularly considering all of the circumstances surrounding the applicant's application; 3. the Applicant's dishonesty with the Registrar; and 4. the Applicant's failure in the past, to change his name for all purposes, 5. the correct and preferable decision, in the circumstances, is to refuse to register the Applicant's requested fourth change of name.

Orders

The Tribunal affirms the decision of the Registrar Registry of Births, Deaths and Marriages to refuse Mr Wells' application of 20 April 2015 to register his change his name. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2016

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cited By (1)