Applying for Australian citizenship - different names problem

[LadyC]

A question for the brains trust - I've seen a little about this posted in the off topic thread but nothing in detail so I thought I would pose the question here.

The gentleman is a citizen of the UK. He moved to Australia as a teenager and has had permanent residency for 20+ years. We have been looking at him applying for citizenship but would appear to have a problem. His current surname is not the same as his surname at birth. His mother remarried when he was young and after a period of time he assumed his stepfather's surname. His name was not changed formally. Apparently back in the UK, if the father agreed, there was just a signed letter saying that eg. John Smith was also known as John Black. As I understand it, you didn't need to lodge this document anywhere, it was just carried around.

So he ended up getting a UK passport in his assumed name and his permanent residency visa is also issued in that name. The problem arises as it would appear that in applying for Australian citizenship, he needs to demonstrate his change of name, which does not exist. He doesn't have a copy of the 'known as' letter. As he was a teenager, he doesn't recall any of the emigration process or have any of the documents.

At this stage, I am thinking that we might need to do an FOI and try and get a copy of the records on his entry into Australia to try and see if there is anything in there about his birth name/assumed name. And/or get a migration lawyer to assist, which I would prefer not to do unless required as it will obviously be expensive.

Any tips/tricks/experiences etc in this field would be most welcome. PM if you would prefer for privacy purposes.

 

[Isochronous]

FOI of immigration records would definitely be useful, but your best bet would be to get legal advice. That way the Immigration Department can't just bully you around.

 

[Anna]

Many lawyers are open to negotiations as to their fees, particularly if you put it in their trust account upfront. They're not allowed to take payment out of their trust account without notifying you that they intend to do so and allowing you time to object. (Note - always check the payment T&Cs of the retainer agreement - which they are obliged to give you and which again is usually negotiable).

I would be surprised if you couldn't get legal advice on this for less than the cost of a medium-sized plumbing problem or a small car-mechanical problem.

 

[theblank]

Apparently back in the UK, if the father agreed, there was just a signed letter saying that eg. John Smith was also known as John Black. As I understand it, you didn't need to lodge this document anywhere, it was just carried around.

Technically, in Australia you didnt even need to do that. There was no law against using another name, provided that you used it in a way that was not intended for any kind of fraud.
For example a writer might have a pen name or an actor a stage name, say Basil Brush, there was no law against him opening a bank account in that name. The bank of course was well within their rights to require some supporting evidence that he can use that name. This is of course back in the day, when ID documents were second fiddle to introductions by another customer or known trusted identity.

I know this is not the same but just pointing out your uncles case is not even the remotely bit unusual. Go back to immigration and ask for someone more senior with brains.
We still have cases today of people turning up at Centrelink with no birth certificates because they were born in the bush. There is always a way. Going to a migration lawyer just to argue with the govt doesnt make that much sense.

I also recall my grandmother having some problems with a govt dept in her later years. She came here in 1910 from UK< and for some reason someone wanted proof of where she was during WW2. (despite the fact her husband served for australia). We found an old personal letter that helped, and they accepted that. So maybe you just keep digging and finding old things with his name on it

 

[Milboo]

Why not just do the formal change of name through births, deaths and marriages to formalise it and then apply for the passport from there?

Seems a lot easier than trying to navigate through the FOI process.

If you went down a lawyer path you'd need someone pretty niche/ specialised as this is not run of the mill stuff and outside of the knowledge of your general practitioner. Honestly most would just google it or call the departments.

 

[Renato1]

The general law in Australia (except for WA) is that citizens can use any name they like, but that does not apply to migrants who require permission to change their names.

In my case, my birth certificate name is different from the name I've used since then. When it came time to get a passport, I had to get copies of all various documents, especially those with photos, and get a Justice of the Peace to sign my Statutory Declaration and all the copies, to demonstrate that I was me of this name.

In your friend's case, as there are no official records of the name change, I presume that statements would have to be created via Statutory Declarations of relatives who new what had happened. If staff give your friend a hard time, an approach to the local MP may be the way to go, rather than paying lawyers.

If it is all too hard, well, the rights of a permanent resident aren't all that different from that of a citizen in Australia, except for voting and jury service.
Regards,
Renato

 

[RooFlyer]

Probably not helping very much, but there was a series on the ABC recently the NSW registry of Births, Death & Marriages at Parramatta called Hatch, Match & Dispatch.

In one episode there was some-one with an issue similar to the one you describe - a Catch-22 of identity due to a previous informal change. (The descriptions of each episode in the link above only covers one of the 3-4 per episode).

Its probably not still view-able, but maybe a call into your/their local BDM registry might give some pointers on what would be needed to establish Australian identity in this case.

 

[LadyC]

Thanks for all your comments and ideas.

Firstly, I don't think that he can go and change his name formally from his birth name to his current name as he doesn't have anything under his birth name. I don't think he has any records of his from the UK, let alone with his birth name on it.

We will keep hunting for old documents and put in an FOI to get his Australian entry data. Then we will tackle Border Force about the citizenship application.

Thanks again for your responses.

 

[The Flying Brick]

Thanks for all your comments and ideas.

Firstly, I don't think that he can go and change his name formally from his birth name to his current name as he doesn't have anything under his birth name. I don't think he has any records of his from the UK, let alone with his birth name on it.

We will keep hunting for old documents and put in an FOI to get his Australian entry data. Then we will tackle Border Force about the citizenship application.

Thanks again for your responses.

I think that your best course of action is to make a call to your local Federal MP's office.
Many have staff who deal with migration and citizenship cases quite frequently and all have special access to staff at the Department of Immigration.

Even better than paying for lawyers as I think that they should always be the last resort when all else fails.

 

[Isochronous]

It always amuses me to see how averse people are to paying for legal advice but don't hesitate in paying the plumbers and other tradesmen to do manual labour on their homes amounts that are often far greater than what simple professional advice will cost.

 

[Anna]

If you went down a lawyer path you'd need someone pretty niche/ specialised

That'd be a migration lawyer. Easy to find in the main street of any area with a high migrant population, or in the CBD of any Australian capital city. Also accustomed to clients with limited means who want to negotiate on fees.

 

[badseed]

Many smallish law firms that deal with migration issues will also offer a free one-hour consultation. In my experience (currently a paralegal preparing for admission) if we can identify a no-cost option for a prospective client we'll always flag that, including going to your local Federal MP. But if that's not going to be a swift or effective option any junior legal practitioner worth their salt should be able to track down documents such as a birth certificate in the UK under his birth name, and prepare an affadavit / stat. dec covering the salient points.

Whilst not being common, this is not a rare situation either.

On fees, the guy I work with always asks about capacity to pay and we structure our fees accordingly, including payment plans etc. Dedicated migration lawyers typically operate in a similar manner.

 

[LadyC]

Thanks brains trust! Not adverse to paying for a lawyer if it will get the issue sorted, i just want to make sure it is an effective use of their time. And to leverage their knowledge of how the system works to understand how easy or hard the lack of documentation will be. It sounds like it is not as difficult as i may have thought.

 

[mhen]

If you don't already have them order his original birth certificate and his mother and stepfather's marriage certificate. While not proof of his name change the latter at least shows his mother's name change.
For births and marriages in England and Wales certificates can be ordered from
Registration Services - Certificate Ordering Service

Have you tried the Citizenship information Line.
"You can call the Citizenship Information Line to discuss your personal circumstances or to get forms and further information. In Australia, telephone 131 880 between 8:30 am and 4:30 pm Monday to Friday."

"Long term residents will need to provide evidence of arrival in Australia. If you no longer have this evidence you can telephone the Citizenship Information Line for advice on how to prove your permanent residence status."

 

[CMA222]

If the person has been known by the name they currently use since they were a teenager and they arrived in Australia under that name, that is their legal name at common law. The document that was a “signed letter” was probably what is called a “deed poll” and is just a one person legal statement that a circumstance has occurred such as a change of name. It is proof of change of name.

It will obviously speed things up considerably to follow the suggestions of mhen to prove the change of name, as those documents will tie together the past and present names.

 

[Anna]

For births and marriages in England and Wales certificates can be ordered from Registration Services - Certificate Ordering Service

This is OT but is there any security on that service to prevent identity theft? Looks to me like as long as I know date and place of birth and am prepared to pay, I can order a birth certificate for anyone born in England or Wales.

 

[LadyC]

If the person has been known by the name they currently use since they were a teenager and they arrived in Australia under that name, that is their legal name at common law. The document that was a “signed letter” was probably what is called a “deed poll” and is just a one person legal statement that a circumstance has occurred such as a change of name. It is proof of change of name.

It will obviously speed things up considerably to follow the suggestions of mhen to prove the change of name, as those documents will tie together the past and present names.

It wasn't deed poll, it was a letter signed by both parents saying that he had assumed the name of his stepfather (apparently the natural father has to sign to confirm he agreed).

 

[LadyC]

If you don't already have them order his original birth certificate and his mother and stepfather's marriage certificate. While not proof of his name change the latter at least shows his mother's name change.
For births and marriages in England and Wales certificates can be ordered from
Registration Services - Certificate Ordering Service

Have you tried the Citizenship information Line.
"You can call the Citizenship Information Line to discuss your personal circumstances or to get forms and further information. In Australia, telephone 131 880 between 8:30 am and 4:30 pm Monday to Friday."

"Long term residents will need to provide evidence of arrival in Australia. If you no longer have this evidence you can telephone the Citizenship Information Line for advice on how to prove your permanent residence status."

He has the birth certificate (well a copy of anyway). It is the only document/form of identity that has his birth name on it.

I haven't called that info line - thanks for the tip. There was an immigration line I was planning on calling but haven't got around to it yet.

 

[LadyC]

This is OT but is there any security on that service to prevent identity theft? Looks to me like as long as I know date and place of birth and am prepared to pay, I can order a birth certificate for anyone born in England or Wales.

We just ordered one and it was sent directly to the gentleman. Fairly straight forward process and no requirement to provide any identity so I think you are correct, no security.

 

[Moindardt]

I think that your best course of action is to make a call to your local Federal MP's office.
Many have staff who deal with migration and citizenship cases quite frequently and all have special access to staff at the Department of Immigration.

Even better than paying for lawyers as I think that they should always be the last resort when all else fails.

I wouldn't be using the local member. We spent months with them telling us they had everything in hand. Was complete BS and when I demanded to know what they had done and achieved, it was nothing and nothing. They had been told right from the outset to stay out of it by immigration but didn't want to look bad so kept hoping it would work out and they could take credit.

As a back story, my wife had basically the same story except she was from the Philippines. She also didn't have an original birth certificate. Once we got the details of her name on entry, we just had to ensure the Marriage certificate matched the original so that was a legitimate change of name. On every piece of paperwork from when she was 4 it had the stepfathers name.

I am not sure how this can help you other than they want a line from that immigration paperwork to who they are now. It may be just a deed to formally change your name in the same way the marriage certificate did? Good luck.