Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

'K' and Department of Immigration and Citizenship [2012] AICmr 20 (7 August 2012)

pdfPrintable version733.11 KB

Decision and reasons for decision of Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: 'K'
Respondent: Department of Immigration and Citizenship
Decision date: 7 August 2012
Application number: MR11/00288
Catchwords:

Freedom of information — Amendment of personal records — Whether a record of date of birth should be amended when it has been shown to be incorrect but an alternative date has not been shown to be correct — (CTH) Freedom of Information Act 1982 ss 48, 50

 Contents

 Summary

1. I set aside the decision of the Department of Immigration and Citizenship (the Department) of 5 September 2011 and substitute my decision, under s 50 of the Freedom of Information Act 1982 (the FOI Act), to amend the Department's record to show the applicant's date of birth as 3 August 1990.

 Background

2. The applicant was born in Sudan. She fled Sudan with her aunt and cousins, and spent as many as 10 years in a refugee camp in Kenya. The applicant came to Australia with her aunt and eight cousins on an Offshore Humanitarian Visa in July 2004. Since coming to Australia, it appears that she has been able to re-establish contact with her mother, from whom she was separated during the civil war in Sudan.

3. On three occasions, the applicant's aunt indicated that the applicant was born in 1986: in her Application for an Offshore Humanitarian Visa completed in 2002; in an interview with the Department in 2003; and when entering into an Agreement to Undertake Care of an Unaccompanied Humanitarian Minor in 2003. In the letter from the Department to the applicant's aunt approving the issue of the visas, and on the applicant's Document for Travel to Australia (DFTTA),[1] the applicant's date of birth was given as 31 December 1996. (None of the material before me explains how that date was arrived at.) The applicant's aunt signed the DFTTA, but the ‘6' in ‘1996' has been overwritten with an ‘8' so that it reads ‘1998'. The Department's records show the applicant's date of birth as 31 December 1996.

4. On 7 September 2006, the applicant applied to the Department,[2] under s 48 of the FOI Act, for an amendment of her date of birth in the Department's records to 31 December 1987. The applicant provided a statutory declaration in which she declared that that was her actual date of birth. At the time of this first application, the birth date on the Department's record would have made the applicant 9 years old; according to her first application, she was then 18. The applicant also provided the Department with a letter from a counsellor at her school saying that her behaviour and maturity was typical of an 18 year old. On 17 January 2007, the Department refused the application.

5. On 8 August 2011, the applicant made another application to the Department for an amendment of her date of birth in the Department's record: this time to 3 August 1990. At the time of this second application, the birth date on the Department's record would have made the applicant 14 years old; according to her second application, she was then 21. On 5 September 2011, the Department refused the second application.

6. On 13 September 2011, the applicant sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

7. The decision under review is the decision of the Department on 5 September 2011 to refuse the applicant's application for an amendment of the Department's record of her date of birth from 31 December 1996 to 3 August 1990.

 Amendment of personal records

8. Under s 48 of the FOI Act, a person may apply to an agency for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading.

9. Under s 50(1), an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading.

10. Under s 50(2), an amendment may be made by altering the document concerned to make the information complete, correct, up to date or not misleading; or by adding a note specifying the respects in which the information is incomplete, incorrect, out of date or misleading.

 Issues

11. The applicant contends that her currently recorded date of birth (31 December 1996) is incorrect; that 3 August 1990 is her correct date of birth; and that the record should be changed to reflect this. In its decision of 5 September 2011, the Department recognised that the currently recorded date of birth may not be correct. However, it was not satisfied that the date claimed by the applicant was likely to be correct. For this reason, the Department refused the application to amend the record.

12. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that, when making a decision on a request for amendment:

An agency or minister need not conduct a full, formal investigation into the matters that the applicant claims are incorrect or misleading. A reasonable investigation that allows the agency or minister to be satisfied on the balance of probabilities that the applicant's claims are correct or incorrect, justified or not justified will be sufficient.[3]

13. Section 55D(1) of the FOI Act provides that, in an IC review, the agency or minister concerned has the onus of establishing that its decision is justified, or that the Information Commissioner should give a decision adverse to the IC review applicant.

14. The issues to be decided in this IC review are whether the Department's record of the applicant's date of birth is incorrect and, if so, whether and how the record should be amended. The onus is on the Department to demonstrate that, on the balance of probabilities, the current date of birth recorded is not incorrect or that it should not be amended.

 Is the currently recorded date of birth incorrect?

15. Since the resettlement process, the Department has recorded the applicant's date of birth as 31 December 1996. As noted above,[4] the applicant's aunt stated three times during the resettlement process that the applicant was born in 1986. The applicant's aunt also stated in her visa application and at interview that she left Sudan with the applicant in 1994. As the Department's original decision-maker acknowledged, this information suggests that the applicant was born before 1996.

16. The DFTTA is not strong evidence that the applicant was born on 31 December 1996. The date on the DFTTA should have been based on the information provided to the Department by the aunt in her application and interview. There is no evidence before me to indicate that the aunt stated that the applicant was born on 31 December 1996 at any point before the issue of the DFTTA. It is likely that the appearance of this date on the DFTTA was the result of a data entry error, with ‘1996' substituted for ‘1986'. The applicant's aunt did sign the DFTTA, but the fact that the ‘6' in ‘1996' was overwritten by an ‘8' may indicate an attempt by the applicant's aunt to correct the date. I give little weight to the DFTTA as evidence that the applicant was born on 31 December 1996—or, for that matter, on 31 December 1998.

17. The applicant relies on two signed statements, one from her older sister (dated 22 August 2011) and one from her aunt (dated 23 August 2011). In these statements, the sister and the aunt both contend that the applicant cannot have been born in 1996, as that would make her younger than her youngest brother. I think that this evidence of the birth order of the applicant in relation to her siblings is likely to be reliable. However, as explained below,[5] I give little weight to the precise date in these statements.

18. In support of her first amendment application (in 2006), the applicant provided a letter from a radiologist dated 5 October 2006 which estimated the applicant's bone age at that time to be 15 years, which would indicate that she was born around 1991. In processing that application, the Department's original decision maker seems to have discounted the contents of that letter because they were not provided in a statutory declaration. In response to the applicant's second amendment application (in 2011), the Department's original decision maker gave little weight to the bone age report on the basis that it was not clear whether the bone age test was performed under controlled conditions and that no letter from the referring doctor was provided. I think that the report—a signed document from a radiologist—should be given some weight.

19. There is evidence that the applicant is significantly older than the date on the Department's records would indicate. Unaccompanied Humanitarian Minor Humanitarian Quarterly Reports for July–September 2005 and October–December 2005 state that the applicant presented as 17 years old, and noted that this was older than the age indicated by her visa. In 2006, the applicant was in year 11 at high school and at that time, as noted above, a school counsellor wrote a letter saying that her behaviour and maturity were typical of an 18 year old. I think it is very unlikely that she was—consistent with the birth date on the Department's record—9 years old at that time.

Findings

20. I find that the Department's current record of the applicant's date of birth is incorrect, and that the applicant was born several years earlier than 1996. There does not appear to be any evidence to indicate that the applicant was born in 1996. The information provided by the applicant's aunt during the resettlement process placed the applicant's date of birth significantly earlier, in 1986. The applicant's life and schooling in Australia supports the conclusion that she is several years older than the Department's record indicates.

 Is the date of birth contended by the applicant correct?

21. The applicant states that she was born on 3 August 1990. The Department contends that this date is unlikely to be correct.

22. The applicant has provided a certified copy of a document from the Federal Medical Commission of the Republic of the Sudan (the 2009 document). The document was issued on 10 February 2009. It gives the applicant's date of birth as 13 August 1990. The Department's original decision maker gave no weight to this document, finding that it was ‘most likely issued on self-reporting information.' The Department also noted that it gave a different date from that which the applicant contends is correct: 13, instead of 3 August 1990.

23. In her submission in support of her application for IC review, the applicant described the 2009 document as a ‘reprint of the original birth certificate', and said that the original had been destroyed during the civil war. The applicant explained that the date on the 2009 document differed from the date she claimed was correct because her mother had been unable to obtain the document and had asked a relative to obtain the document on her behalf.

24. As did the original decision maker, I give no weight to the 2009 document for the following reasons:

  • it does not support the precise date that the applicant claims is her date of birth
  • evidence provided by the Department suggests that the Federal Medical Commission issues ‘replacement certificates' on the basis of the self-reported information of those requesting them, and
  • the applicant's own submission on this matter supports a finding that any original official documentation of her date of birth was destroyed in the civil war and that the 2009 document was based solely on the information provided to the Federal Medical Commission by a relative, which she admits was wrong.

25. The applicant also relies on the signed statements from her older sister and from her aunt, both of which support a birth date of 3 August 1990. The applicant's older sister says that she was born in 1984 and that she was present at the applicant's birth. The applicant's aunt says she is able to remember the applicant's date of birth, and is ‘absolutely certain' that it was 3 August 1990. She admits she had provided the Department with an incorrect date of birth for the applicant during the resettlement process. She states that this was because she was responsible for a large number of children, did not have access to official records of the children's date of birth, did not speak English, and was illiterate in Dinka and Arabic. She states that more recently she has been able to contact relatives in South Sudan, allowing her to remember the correct date of birth.

26. The Department gave some weight to these two statements, but did not consider them to be convincing evidence that the applicant was born on 3 August 1990. In submissions for this IC review, the Department emphasised that the applicant and her family members had provided contradictory dates to the Department at different times. In the Department's view, this casts doubt on the information that they have provided in this application.

27. The applicant was given an opportunity to make a submission for this IC review to explain why in 2006 she had provided the Department with a statutory declaration stating that she believed that her date of birth was 31 December 1987, and why she had changed her mind. In her response, she stated that her aunt had proposed the 1987 date, and that she had gone along with that. She also stated that her 2006 application was made before she re-established contact with her mother, and that her mother confirms that the correct date is 3 August 1990.

28. I agree with the Department's assessment that neither the applicant's own evidence, nor the signed statements from her sister and her aunt, provide significant support for the contention that the applicant was born on 3 August 1990. Obviously, the applicant is unable to remember her own birth. And, if her older sister's statement is correct, the sister would have been about six years old at the time of the applicant's birth; she, too, is unlikely to have an independent memory of the applicant's date of birth. The date 3 August 1990 has been proposed only relatively recently. Both the applicant and her aunt have provided different dates in the past. They would appear to have arrived at the new date by consulting family members in Sudan after 2006.

29. In Ndonya and Minister for Immigration and Citizenship [2009] AATA 940, the Administrative Appeals Tribunal (the Tribunal) heard evidence that, in Sudanese culture, birthdates are identified by events rather than by calendar dates.[6] I think it is unlikely that the applicant's family members could be certain about the calendar date of the applicant's birth. Without greater specificity about the information that those family members provided, these claims can be given little weight.

30. The Department's original decision maker noted that, on the form by which the applicant made her second application for amendment, she used correction fluid in the place where she wrote her date of birth as 3 August 1990. In the decision maker's view, this showed that the applicant was unsure of her date of birth. I do not accept that this conclusion necessarily follows. I do not put any weight on the applicant's use of correction fluid.

Findings

31. There are no strong grounds for concluding that the applicant was born on 3 August 1990. There is no official document of any kind giving that date. That date is, in the words of the Tribunal in Ndonya, ‘a guess at best.'[7]

32. I do not find that the applicant was born on 3 August 1990.

 Should the Department's record be amended?

33. I have found that the Department's record of the applicant's date of birth is incorrect, but it is impossible to determine the applicant's date of birth with any accuracy. The key issue in this IC review is whether, in such circumstances, the Department should amend its record.

34. The Department acknowledged that the currently recorded date is possibly incorrect, but took the view that it could not amend its records unless the alternative date provided by the applicant was likely to be correct. This approach is incorrect.

35. In Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410, the Tribunal considered a very similar situation to that in this IC review. The Tribunal said:

I am not satisfied that it is necessary to be satisfied as regards an exact birth date in order to exercise the discretion in s 50(1). ... It would seem to me that, if Mr Tang was born on a date uncertain but in 1939, it would be preferable that his official records show him as born in 1939 rather than on a date in 1943 that is entirely incorrect.[8]

36. In Ndonya, as in this IC review, the applicant was a refugee from the Sudan. In that case, the Department's records indicated only a year of birth (1988) and the date of birth was recorded as ‘00/00/1988'. The Tribunal said:

Mr Ndonya's date of birth ... as currently recorded ... is plainly wrong. I am satisfied, on the best available evidence, that he was born in 1991 but there is no way of ascertaining with any certainty his actual date of birth and there does not seem to be any reasonable prospect of doing so in the future.
Section 50(2)(a) of the FOI Act provides that the agency may make the amendment ‘by altering the document ... to make the information complete, correct, up to date or [not] misleading'. The trouble in this case is the lack of probative evidence by which to correct the information.
With identity documents showing only a year of birth, Mr Ndonya will face difficulties which the respondent readily acknowledges. He will likely face difficulties in education, and access to services and benefits, and in any area in which eligibility depends on age.
An option would be to amend the record to show Mr Ndonya's date of birth as 1 January 1988 or 31 December 1988, both of which have been adopted in the past. However, both are as plainly fictitious as 00/00/1988, only more meaningful.
On balance, given Mr Ndonya's insistence that his date of birth is 12 September 1991, even though the source of the information is not clear, I am satisfied that the record should be amended to reflect that as his date of birth.[9]

37. Refugees can come to Australia from countries in which official record-keeping is unreliable, incomplete or has been interrupted by conflict. Some will come from cultures where exact calendar birth dates are given less importance than they are in Australia. In such circumstances, and without any bad faith on the part of the refugee or their family, an incorrect date of birth could easily be submitted to the Department during the resettlement process. If the recorded date cannot later be amended unless the applicant can demonstrate that a different date is correct, the original mistake becomes effectively irreparable. The same factors that caused the mistake to be made in the first place will prevent it from being amended. This gives undue weight to a date of birth self-reported at the time of initiating the resettlement process.

38. A significant difference between a person's actual age and their age as reflected in government records may cause them significant disadvantage. They may be deprived of educational and employment opportunities that are open to people of their age. They may be considered ineligible for services or benefits for which they are eligible. An agency's unwillingness to amend a record when it is clearly incorrect may have a practically discriminatory effect on an applicant.[10] In this IC review, the incorrect date in the Department's records has affected the applicant's eligibility for Youth Allowance, because (if it were correct) she would be younger than the minimum age for that benefit.

39. It is obviously important that government records are as accurate as possible, and that any alterations are justifiable. If the exact date of a person's birth cannot be established, an agency should record the closest possible approximation to the correct date. When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied than the date proposed by the applicant is correct before it can amend its record under s 50. It is enough that:

  • the date proposed by the applicant is more likely to be the correct date, or to be closer to the correct date, than the date currently recorded, and
  • there is no other date that is more likely to be correct.[11]

As noted above,[12] the onus is on the agency to demonstrate that, on the balance of probabilities, the current record is not incorrect or that it should not be amended.

 Findings

40. I am satisfied that 3 August 1990 is closer to the applicant's actual date of birth than 31 December 1996. Four other dates have been proposed as the applicant's birth date: 1986, 31 December 1987, 13 August 1990 and 31 December 1998. None of those dates is more likely to be correct than the one proposed by the applicant in this IC review.

 The effect of amendment on the prior record

41. Most Australian government records of dates of birth, and other important dates, are based on official documentation. In some cases, as in this IC review, the FOI Act will require the amendment of government information even though the alternative information is not supported by reliable documentation. This is because the information that is being amended is no more reliable than the information that replaces it. But the information that is being amended should not be destroyed. Section 50(3) provides that, to the extent that it is practicable to do so, the agency must make the amendment so as to ensure that the text of the record as it existed prior to the amendment is not obliterated. The Department could achieve that, in this IC review, by amending its record of the applicant's date of birth and annotating the record with information about the date it previously recorded.

 Decision

42. Under s 55K of the FOI Act, I set aside the Department's decision of 5 September 2011 and decide, in substitution for that decision, to amend the record to show the applicant's date of birth as 3 August 1990.

James Popple
Freedom of Information Commissioner

7 August 2012

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1]DFTTAs are issued in the place of passports to allow refugees who have no passport to enter Australia.

[2] At that time, the Department was named the Department of Immigration and Multicultural Affairs.

[3] Guidelines, [7.29].

[4] See [3] above.

[5] See [25]–[29] below.

[6] [2009] AATA 940, [26].

[7] [2009] AATA 940, [36] per Toohey SM.

[8] [2004] AATA 410, [24] per Sassella SM.

[9] [2009] AATA 940, [48]–[52].

[10] See Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410, [24] per Sassella SM: ‘It is not uncommon for refugees and some other migrants to Australia not to know their exact birth dates and Australian bureaucratic authorities must then do their best to treat them in a constructive and non-discriminatory way'.

[11] It would be open to an agency to amend a record, under s 50(1), by changing it to a date different to both the currently-recorded date and the date proposed by the applicant, provided that the new date is more likely to be correct than any other.

[12] See [12]–[14] above.