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'M' and Department of Immigration and Citizenship [2012] AICmr 23 (18 September 2012)

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

Summary of case details
Applicant: 'M'
Respondent: Department of Immigration and Citizenship
Decision date: 18 September 2012
Application number: MR11/00009
Catchwords:

Freedom of information — amendment and annotation of personal records — (CTH) Freedom of Information Act 1982ss 48, 50, 55D

 

Contents

 Summary

  1. I affirm the decision of the Department of Immigration and Citizenship (the Department) of 14 January 2011 not to amend its record of the applicant's date of birth under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 15 December 2010, the applicant applied to the Department to amend its record of her date of birth from 7 October 1964 to 7 October 1955. On 14 January 2011, the Department refused to make that amendment. On 4 February 2011 the applicant sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department on 14 January 2011 to refuse to amend its record of the applicant's date of birth.

 Amendment of personal records

  1. 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for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading.
  2. 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an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading.
  3. 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date or not misleading; or by adding a note specifying the respects in which the information is incomplete, incorrect, out of date or misleading.
  4. 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 s 50:

    ... requires a decision maker to undertake a reasonable investigation and to assess the available evidence. If an application does not provide evidence in support of their claim, an agency would be justified in refusing to amend the record. ...

The applicant's opinion is not determinative; it is for the agency to be satisfied that the applicant's claims are correct.[1]

  1. Furthermore, when assessing what weight to give to evidentiary documents, the decision maker should consider the context in which the information was first provided and documented. This is particularly important where the applicant has no documents to support their application of amendment other than a statutory declaration stating their case.[2] The material that an applicant needs to provide to support their claim will vary according to each case.[3] The more significant the effect of the amendment sought, the greater the weight of evidence that would be required to justify the amendment.
  2. 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. 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.[4]

 Issues

  1. In its reasons for decision, the Department advised the applicant that her claim that her date of birth should be amended had been noted on its records.[5] The Department also offered to add a further annotation of the applicant's claims if requested to do so. The applicant has not sought any further annotation through this IC review application.
  2. 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.

 Is the currently recorded date of birth incorrect?

  1. The applicant says that she was born in an isolated village in Afghanistan, where there were no doctors or hospitals, at a time when female births were not recorded. In her IC review application she says that, at the time of her birth, Afghan people did not consider dates of birth to be important.
  2. The applicant arrived in Australia in December 2001. In her application to migrate to Australia, dated June 2004, the applicant gave her date of birth as 7 October 1964. She now says that she did not actually know her date of birth at that time.
  3. In 2006 the applicant's mother applied for an Afghan identity document (a ‘taskera') on behalf of the applicant. The applicant's mother provided witnesses from her village in support of the application. A taskera for the applicant was issued on 30 April 2006 by the Ministry of the Interior, Afghanistan. The English translation of this document states that the applicant would be 52 years old in 2007, supporting her claim that she was born on 7 October 1955.
  4. The applicant claims that she discovered her correct date of birth between February and May 2010 when she visited her mother in Pakistan.
  5. The Department refused to amend its records. It attached no weight to the taskera on the basis that the applicant was in Australia when it was issued and ‘it does not appear to have been issued with reference to historical records regarding the applicant['s] birth registration'. The Department's view was that the taskera was ‘most likely to have been issued based on appearance in the photograph provided or on self reporting information'.
  6. The Department also noted that, according to the applicant's application to migrate to Australia, the applicant's mother was born around 1948, which would have made her seven years old when the applicant claims to have been born. The applicant says that her mother's date of birth was incorrectly recorded (by an ‘officer') in her visa application as being 1948, rather than 1942. In her IC review application, she says that she has since learnt that her mother was born in 1935 and was 20 years old when she gave birth to the applicant.

 Findings

  1. The Department's record of the applicant's date of birth (as 7 October 1964) is based on information provided to it on visa application documents. The principal evidence that the Department's record is incorrect is the taskera document, which gives only an approximation of age and was issued without any documentary basis. No other official document supports the applicant's claim that she was born in 1955 and not in 1964.
  2. I am satisfied that, on the balance of probabilities, the currently recorded date of birth is not incorrect.

 Should the Department's record be amended?

  1. Given my finding about the currently recorded date of birth, there is no need for me to consider whether and how the record should be amended.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 14 January 2011.

James Popple
Freedom of Information Commissioner

18 September 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] Guidelines, [7.27]–[7.28].

[2] Guidelines, [7.31].

[3] Guidelines, [7.28].

[4] See ‘K' and Department of Immigration and Citizenship [2012] AICmr 20, [12]–[14].

[5] The Department was required to do this by s 51(1)(b) of the FOI Act.