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'U' and Department of Immigration and Citizenship [2012] AICmr 36 (24 December 2012)

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

Summary of case details
Applicant:

'U'

Respondent: Department of Immigration and Citizenship
Decision date: 24 December 2012
Application number: MR11/00301
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 26 August 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 27 July 2011, the applicant applied to the Department to amend its record of his date of birth from 10 October 1980 to 25 December 1984. On 26 August 2011, the Department refused to make that amendment.
  2. On 21 September 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 26 August 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for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading.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an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading.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date or not misleading; or by adding a note specifying the respects in which the information is incomplete, incorrect, out of date or misleading.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.[1]

 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 was born in Somalia. He fled civil war in that country with his uncle while still a child. His uncle died not long afterwards and he was left without access to family records, including those of his date of birth.
  2. In 2004, the applicant applied to migrate to Australia. In his application to migrate, and his subsequent application for Australian citizenship, he gave his date of birth as 10 October 1980. The Department's record of the applicant's date of birth is based on this self-reported information provided during the resettlement process. The applicant has used the same birth date since he arrived in Australia.
  3. In 2010, the applicant was able to establish contact with his sister. She told him that she had his birth certificate in her possession. She said that his mother had obtained the certificate from the Somali authorities in 1985. The birth certificate gave the applicant's date of birth as 25 December 1984. The applicant gained possession of the birth certificate in May 2011.
  4. In submissions in support of his application for IC review, the applicant said that, until he became aware of the existence of the birth certificate, he believed that he had been born on 10 October 1980. He relied on the birth certificate to support his claim for a change to his date of birth.
  5. In support of its decision the Department provided a file note prepared by its Document Examination Unit (DEU) outlining its previous examination of a birth certificate of a different person, similar to that of the applicant and issued in the name of the same authorising person. The file note states that:

    ... over a number of years, [the DEU] has seen many such documents allegedly issued by [that authorising person] as the Mayor, Vice Mayor or other official capacity and spread over different periods of time from the mid-1980s to 2000, but with different signatures ... This has the effect of removing any credibility from any document with the name and signature of [that authorising person] associated with its issue.

  6. In response to this, the applicant acknowledged that other individuals may have obtained documents from the Somali authorities in exchange for money during the civil war, but maintained that his document was authentic.
  7. Based on the evidence from the DEU, I give little weight to the applicant's birth certificate.

 Findings

  1. The information upon which the Department's record is based was self-reported and is, arguably, no more reliable than the information that the applicant now provides in support of his amendment application. However, the question is not which of the two dates is the more reliable;[2] the question is whether the currently recorded date of birth is incorrect.
  2. The Department's record of the applicant's date of birth (as 10 October 1980) is based on information provided to it on migration documents. The only evidence that the Department's record is incorrect is the applicant's birth certificate, which gives his birth date as 25 December 1984.
  3. 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 26 August 2011.

 

James Popple
Freedom of Information Commissioner

24 December 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] 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.

[2] 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].