Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Djamirze v Director General, Department of Services Technology and Administration [2012] NSWADT 17 Hearing dates: 18 April 2011, 1 June 2011, 13 September 2011 Decision date: 09 February 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Catchwords: Business name - cancellation of registration Legislation Cited: Administrative Decisions Tribunal Act 1997 Business Names Act 2002 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Category: Principal judgment Parties: Alan Djamirze (Applicant) Director General, Department of Services Technology and Administration (Respondent) Representation: Remington & Co (Applicant) Legal Services, NSW Fair Trading (Respondent) File Number(s): 113007 Publication restriction: S75 of the Administrative Decisions Tribunal Act 1997 applies in respect of material provided to the Tribunal or to the Respondent in relation to the Applicant's family history is to be used only for the purpose of these proceedings and is not to be made publicly available. REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)):The Applicant seeks a review of the Respondent's decision to cancel the registration of the business name "HRH Prince Alan Djamirze". Background 2The Respondent registered the business name to the Applicant on 24 August 2010 pursuant to section 5 of the Business Names Act 2002 ("the Act"). 3However, shortly afterwards, on 14 September 2010, the Respondent sent the Applicant a letter and Notice under section 17(4) of the Act and advised that the business name had been registered inadvertently. The Notice advised that the name should not have been registered because it contravenes clause 6 of the Ministerial Prohibition. The Notice gave the Applicant the opportunity to make written submissions to the Commissioner for Fair Trading in relation to the proposed cancellation of the Registration. 4The Applicant provided submissions in response to that invitation. However, the registration of the business name was cancelled on 21 October 2010 and a letter was sent to the Applicant informing him of the cancellation. 5The Applicant subsequently sought an Internal Review of the decision to cancel the registration of the business name. The internal review affirmed the original determination. In cancelling the registration of the business name the Respondent has applied a Prohibition Order issued by the Minister for Fair Trading which specifically precludes the registration of a business name if the name suggests a connection with a member of a royal family and the connection suggested does not exist ("the Prohibition Order"). 6The Applicant has applied to the Tribunal for external review of the decision to cancel the registration of the business name. Issues 7I agree with the Respondent's suggestion that the issue in this matter are as follows: * Whether the business name "HRH Prince Alan Djamirze" suggests a connection with a member of a royal family? * Whether there is evidence to prove that the Applicant has royal lineage? * Whether the business name "HRH Prince Alan Djamirze" is capable of registration under the Act? * Whether the cancellation of the registration of the business name was made correctly? Applicable Law 8Section 5(1) of the Business Names Act 2002 provides that the Commissioner may grant registration of a business name. 9Pursuant to section 6(2), unless the Minister so directs, a business name is not to be registered if "(a) registration is prohibited by an order in force under section 21". 10Section 21 provides that the Minister, by order published in the NSW Government Gazette, "may prohibit the registration as a business name of any name or class of names specified in the order". 11The Prohibition Order was issued by the Minister for Fair Trading on 16 March 2005 and was in force at the time the business name was registered and at the time the registration of the business name was cancelled. The Prohibition Order provided: "Prohibition by Minister for Fair Trading I, JOHN HATZISTERGOS, Minister for Fair Trading for the State of New South Wales, being the Minister for the time being administering the Business Names Act 2002 ("the Act"), pursuant to the power conferred by section 21(1) of the Act, hereby prohibit the registration as a business name of the names or classes of names specified below, viz: ... 6. Names which, in the context in which they are proposed to be used, are capable of suggesting: (a) connection with a member of a royal family when the connection suggested does not exist; or (b)that royal patronage has been received when this is not the case." 12Section 17 of the Act provides: "17 Cancellation of registration in relation to business name generally (1) The Director-General may cancel the registration of a business name: (a) if the business name has been registered in contravention of section 6, whether by inadvertence or otherwise, or ... (4) Action may not be taken under this section with respect to a business name unless the Director-General: (a) has caused notice of the proposed action (including reasons for the proposed action) to be given to each person in whose name the business name is registered, and (b) has given each such person at least 28 days within which to make written submissions to the Director-General in relation to the proposed action, and (c) has taken all such submissions into consideration." 13The Applicant has not raised any issues in regard to the Respondent's compliance with section 17 of the Act. 14Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 15A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 16Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. The Applicant's Case 17The Applicant relies on his own evidence and rana case in support of his assertion that he is a Circassian Prince. He gave evidence of his family history and provided a document that he asserts is a family record of the Circassian Royal House of Dja Mirze. He contends that "Djamirze" has a meaning comparable to "Prince of the blood royal". He submitted: "The title "Mirze/Mirza" is only for those who belong to Royal clans. Title of HRH Prince Alan Djamirze is not a "created" title; it is a social hereditary title, which cannot be established by peerage patents as is not the cultural practice of the Circassians. The Circassians had no kings and Sovereigns of Circassia were the Princes. HRH Prince Alan Djamirze is a prince of Circassia. The social rank is a part of the monarch's name, as is the case of HRH Prince Alan Djamirze, "Dja-Mirze" Dja being the geographical distinction of the prince and Mirze pronounced "MIRZA" the title signifying prince of the blood royal the only hereditary title in Islamic nations ..." 18His evidence is that he, along with large numbers of Circassians, lives in exile. His family has sought refuge in Australia because of communist oppression that caused many deaths of Caucasian nobles at the hands of the communists including many members of the Djamirze clan have been assassinated or sent to Siberian labour camps. He stated that he is reluctant to approach the Ukrainian government for documentary evidence to support his asserted royal lineage. However, he relies on a number of documents for that purpose. 19The Applicant provided a copy of a birth certificate translated by the Russian Translation Services. The certificate shows the name of the Applicant and his parents, and that the Applicant was born in Ukraine. A notation on that certificate states: "Translator's note: Mirze a title means "Prince of the blood royal" 20He also provided a translated copy of a Baptism certificate issued by the Russian Orthodox Church Abroad in the name of "HRH Circassian Prince Alan Victorovich Dja Mirze'". A notation on that certificate states: "(Father) "HRH Circassian Prince Viktor Akhmetechevich Dja Mirze'" (Mother) "HRH Princess Tatyana Anatoleyevna Dja Mirze'" 21The Applicant provided a number of other items in support of his assertion. These included: 1. The Applicant's statutory declaration stating that "I am HRH Prince Alan Djamirze"; 2.An Affidavit of Identification for HRH Prince Alan Djamirze 3.A letter from the Open Training and education network addressed to "HRH PRINCE ALAN D'JAMIRZE" 4.A letter from the Australian Taxation Office addressed to "HRH PRINCE ALAN D'JAMIRZE" 5.A letter from Centrelink addressed to "Hrh Pr Alan Djamirze" 6.A TAFE student identity card issued in the name of "Hrh Prince Alan Djamirze" 7.An International student identity card issued in the name of "DJAMIRZE HRH PRINCE ALAN" 8.A Westpac Debit card issued in the name of "HRH DJAMIRZE" 22The Applicant's solicitor withdrew from the matter prior to the final day of hearing. Thereafter the Applicant appeared on his own behalf. He made oral submission in which he argued that the documentation that he has provided has been sufficient to allow various State and Commonwealth government departments to recognise his title and that this should be sufficient to permit the registration of the business name "HRH Prince Alan Djamirze". 23He also submitted that the Tribunal should accept the difficulties that confront him in regard to obtaining further documentation because of the exile of his people and the prevailing political situation in the Ukraine and elsewhere. The Respondent's case 24As required by section 58 of the ADT Act, the Respondent has lodged all relevant material in its possession. 25Each of the parties made both oral and written submissions. 26It is the Respondent's position that the business name "HRH Prince Alan Djamirze" suggests a connection with a member of a royal family. It is also the Respondent's position that the Applicant has not established that he has royal lineage. 27The Respondent's solicitor, Ms Lu, submits that the onus of proving royal lineage is upon the Applicant. She further submits that unless the Applicant can establish that he has royal lineage the business name is not capable of registration as it contravenes the Prohibition Order. 28It is the Respondent's position that, having concluded that the business name "HRH Prince Alan Djamirze" is not capable of registration, the decision to cancel the registration of the business name was correctly made. Therefore, the application should be dismissed. 29The Respondent accepts that the word "Djamirze" may have historical meaning asserted by the Applicant. However, Ms Lu submits that the Applicant's argument that he is a Prince should be rejected. 30Ms Lu concedes that the birth certificate translated by the Russian Translation Services shows the name of the Applicant and his parents, and that the Applicant was born in Ukraine. However, she submits that the birth certificate does not show that the Applicant has royal lineage or that the Ukrainian government has recognised the Applicant as having royal lineage. She argues that as the Ukrainian government is silent on the issue of the Applicant's alleged royal status, the inference to be drawn is that the Applicant is not a Prince, or at least recognised as a Prince. 31She submits that if the Applicant is not recognised as a Prince by his birth country or any other Sovereign State, and if the Applicant is unable to satisfy the Tribunal of his royal lineage, by way of evidentiary proof, there is no good public interest policy why the Applicant should be recognised as a Prince at all. 32In relation to the notation on the birth certificate that reads "Translator's note: Mirze a title means 'Prince of the blood royal" Ms Lu, submits that this notation does not appear on the original birth certificate. Therefore the Translator has exceeded his role as a Translator by providing his own personal commentary, which is not strictly a translation. She further submits that "Djamirze" is a Circassian word and there is no evidence that the Russian Translator has expertise in the Circassian language. She submits that the Translator has departed from his area of expertise and urges the Tribunal to disregard the notation made by the Translator. 33Ms Lu concedes that the Applicant's baptism certificate shows that the Applicant and his parents have royal titles. However, she submits that the baptism certificate cannot be used as evidence to prove royal lineage. This is because it is unclear what primary documents were used, if any, to obtain the baptism certificate. She argues that the Tribunal would fall into error if it were to accept the baptism certificate, which is a secondary document, as proof of royal lineage. 34Ms Lu further submits that there is no evidentiary document to support the information contained in the Applicant's family tree. She also notes that the family tree lacks specificity e.g. the year of birth and death of the individuals. 35Ms Lu submits that the proper proofs of royal lineage may come from formal documents such as those issued by the Sovereign State or the relevant embassies. 36Alternatively, the Applicant may seek recognition as a member of a royal family from the Protocol and Business Operations, NSW Department of Premier and Cabinet, or Protocol Branch, Australian Government Department of Foreign Affairs and Trade. 37There is no evidence that the Applicant is recognised as a member of a royal family by the NSW Government or the Australian Government. 38The Respondent submits that in the absence of documentary evidence, the Tribunal cannot recognise the Applicant as a member of a royal family. The decision to cancel the registration of the business name "HRH Prince Alan Djamirze" should therefore be affirmed. Consideration 39It is not in dispute that the business name "HRH Prince Alan Djamirze" suggests a connection with a member of a royal family. The Applicant in fact asserts that he is a member of a royal family - a Circassian Prince. 40The Prohibition Order precludes the registration of a business name if the name suggests a connection with a member of a royal family and the connection suggested does not exist. The burden falls on the Applicant to prove that connection. 41I have considered all the material that the Applicant has provided in support of his claim. I agree with the Respondent's assessment of that material. 42The only primary document that the Applicant has placed before the Tribunal is his birth certificate. That certificate does not show that the Applicant has royal lineage. 43As the Respondent has correctly asserted, all the other documents placed before the Tribunal are secondary documents and there is no evidence to show what primary documents were used, if any, to obtain those documents. 44In my view there is insufficient material on which I can be satisfied, to the required standard, that the asserted connection with a royal family exists. 45This of course does not preclude the possibility that the Applicant has correctly asserted his royal lineage. However without further material to prove that lineage the business name "HRH Prince Alan Djamirze" cannot be registered under the Act. It follows that the decision to cancel the registration was the correct and preferable decision and it should be affirmed. 46The Respondent has identified steps that the Applicant can take to obtain the necessary documentation. If he obtains that documentation he can reapply for registration of the business name "HRH Prince Alan Djamirze". In the meantime, the Applicant is entitled to carry on business under his proper name and that name need not be registered. Order The decision under review is affirmed. ********** 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: 09 February 2012