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

‘P’ and Department of Immigration and Citizenship [2012] AICmr 29 (20 November 2012)

pdfPrintable version650.08 KB

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

Summary of case details
Applicant: ‘P’
Respondent: Department of Immigration and Citizenship
Decision date: 20 November 2012
Application number: MR11/00236
Catchwords: Freedom of information – Amendment of personal records – Whether a record of date of birth should be amended – (CTH) Freedom of Information Act 1982 ss 48, 50

 Contents

 Summary

  1. I affirm the decision of the Department of Immigration and Citizenship (the Department) of 6 July 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 6 June and 11 August 2011, the applicant applied to the Department to amend its record of her date of birth from 9 July 1980 to 1 February 1985.[1] On 6 July 2011, the Department refused to make that amendment.
  2. On 12 August 2011, the applicant sought IC review of that decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department on 6 July 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for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading. 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an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading. 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date or not misleading; or by adding a note specifying the respects in which the information is incomplete, incorrect, out of date or misleading.
  2. 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 the material that an applicant needs to provide to support their claim will vary according to each case.[2]

 Issues

  1. 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, her mother and her sister arrived in Australia in July 2001.[3] In the Document for Travel to Australia, the applicant’s date of birth was recorded as 19 April 1983 and her sister’s as 9 July 1980. In January 2002, the applicant and her sister applied to the Department to have the record of their dates of birth swapped. They said that their correct dates of births had been interchanged during their migration to Australia. The Department made those amendments in April 2002, so that it now records the applicant’s date of birth as 9 July 1980.
  2. In 2011 the applicant sought to have her date of birth amended again. She said that her brother had incorrectly converted her date of birth from the Persian Calendar when he completed a Refugee and Special Humanitarian Proposal sponsorship form in 2001. This error, she said, was made even before her and her sister’s birth dates were transposed.
  3. The applicant claims that her actual date of birth, in the Persian calendar, is 12 Bahman 1363. In her 2011 amendment application to the Department, she noted that that date is 19 January 1985 in the Julian calendar and 1 February 1985 in the Gregorian calendar. The Department treated her application as if it were seeking an amendment to 19 January 1985; because the Gregorian calendar is used in Australia, she was actually seeking an amendment to 1 February 1985.[4]
  4. In support of her amendment application, the applicant provided statutory declarations made by herself, her mother and her brother. The Department points out that there is no other evidence that supports the applicant’s claim. The Department also points out that these statutory declarations are inconsistent with a statutory declaration made by the applicant in 2004 in support of her application for Australian citizenship.

 Findings

  1. The information upon which the Department’s record is based was self-reported and may have been incorrectly converted from the Persian calendar; it is, arguably, no more reliable than the information that the applicant now provides in support of her amendment application. However, the question is not which of the two dates is the more reliable;[5] the question is whether the currently recorded date of birth is incorrect.
  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 6 July 2011.

James Popple
Freedom of Information Commissioner

20 November 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] As explained in [10] below, the Department treated the applicant’s amendment application as if it were seeking an amendment to 19 January 1985.

[2] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [7.28]. See also ‘K’ and Department of Immigration and Citizenship [2012] AICmr 20; ‘M’ and Department of Immigration and Citizenship [2012] AICmr 23; ‘N’ and Department of Immigration and Citizenship [2012] AICmr 26; ‘O’ and Department of Immigration and Citizenship [2012] AICmr 27.

[3] The applicant has requested that the country from which she travelled to Australia not be mentioned in these reasons for decision.

[4] The applicant gave the Julian date in her June 2011 application. She gave the Julian and Gregorian dates when she revised her amendment application in August 2011.

[5] That is the test that is applied when deciding whether to amend a record, having decided that the existing record is incorrect: see ‘K’ and Department of Immigration and Citizenship [2012] AICmr 20, [33]–[40].