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'V' and Department of Immigration and Citizenship [2013] AICmr 1 (3 January 2013)

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

Summary of case details
Applicant:

'V'

Respondent: Department of Immigration and Citizenship
Decision date: 3 January 2013
Application number: MR11/00303
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 10 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 19 July 2011, the applicant applied to the Department to amend its record of her date of birth from 1 January 1955 to 1 January 1944. On 10 August 2011, the Department refused to make that amendment.
  2. On 23 September 2011, the applicant sought IC review of that decision under s 54L of the FOI Act. At around the same time, she made a second application to the Department for the same amendment as she had sought in her first application. In a decision of 3 January 2012, the Department again refused to make the amendment. That decision was affirmed on internal review on 2 March 2012.

 Decision under review

  1. The decision under review is the decision of the Department on 10 August 2011 to refuse to amend its record of the applicant's date of birth.
  2. The Department's decisions in response to the applicant's second application are not the subject of this review. However, since both applications sought the same change to the applicant's records, I have had regard to the material the applicant provided in support of each application and to the Department's reasons in response to each application.

 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for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading.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an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading.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 is originally from Afghanistan. She and her husband fled Afghanistan and came to Indonesia as refugees. They were interviewed by officials of the Department in Indonesia in 2010, and were granted refugee visas for resettlement in Australia. They arrived in Australia in 2011.
  2. There is no official document to support the applicant's currently recorded birth date (1 January 1955), which is based on self-reported information provided at the interview in 2010. Records of the United Nations High Commissioner for Refugees (UNHCR) from the time when the applicant was a refugee in Indonesia recorded the applicant's date of birth as 1 January 1959. At the interview, the applicant sought to correct this, stating that she was around 55 years of age, not 50. This was the basis for the Department recording her date of birth as 1 January 1955 on her Document for Travel to Australia.
  3. At various points, the applicant has provided the following evidence in support of her contention that she was born on 1 January 1944:
    • An uncertified copy of an Afghan identity document, most likely a 'taskera', in Dari issued in 2004, and three different English translations of this document. Information provided by the Department indicates that such documents are usually issued on the basis of self-reported information. The document states either that the applicant was 60 years old in 2004, or that she was born on 1 January 1944 (the translations differ on this point). The applicant says that the original document has been lost.
    • A statutory declaration of 3 May 2012 stating that the applicant was told (it is unclear by whom) that her real date of birth was 1 January 1944. She also states that, at the time of her arrival in Jakarta, she had no documents and was very confused, and her date of birth was mistranslated. However, this can only be an inference on her part, as she spoke very little English herself. Further, at the 2010 interview, the applicant challenged information in the UNHCR records that indicated she was then around 50 and said that she was around 55. If she was born in 1944, she would have been around 61 at the time of interview. While I accept that the applicant may not have known her specific birthdate, such a large discrepancy is surprising.
    • A letter from a medical practitioner. A copy has not been provided to the Office of the Australian Information Commissioner. However, the document is described in the Department's internal review decision of 2 March 2012. In the letter, the medical practitioner indicates that, in his opinion, the applicant's appearance is consistent with a person in their mid-sixties, and also consistent with a birth date of 1 January 1944.
    • The applicant also relies on an observation made by the officer who interviewed her and her husband in Indonesia in 2010. In the record of that interview, the officer observed that the applicant looked 'much older' than was indicated by the birth date which was recorded at that interview (1 January 1955).

    The estimates of age given by the medical practitioner and the interviewing officer are largely subjective. There is very little other evidence to establish that the date on record is incorrect.

 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 her 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 principal evidence that the Department's record is incorrect is the uncertified 2004 identity document and three English translations. No other official document supports the applicant's claim.
  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 10 August 2011.

James Popple
Freedom of Information Commissioner

3 January 2013

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].