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'O' and Department of Immigration and Citizenship [2013] AICmr 27 (15 March 2013)

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Decision and reasons for decision of Acting Freedom of Information Commissioner, Toni Pirani

Summary of case details
Applicant:

'O'
'P'

Respondent: Department of Immigration and Citizenship
Decision date: 15 March 2013
Application number: MR11/00282, MR11/00283
Catchwords:

Freedom of information — Amendment of personal records — Whether the information on the Department's record is incorrect — (CTH) Freedom of Information Act 1982 ss 48, 50

 

Contents

 Summary

  1. This statement of reasons concerns two decisions subject to IC review under the Freedom of Information Act 1982 (the FOI Act). The applicants, who are brothers, made separate requests for amendments to the records of the Department of Immigration and Citizenship (the Department). The applicant in MR11/00282 is the elder brother and the applicant in MR11/00283 is the younger brother.
  2. I affirm the two decisions of the Department of 10 August 2011 to refuse to amend its records of the applicants' information.

 Background

  1. The applicants and other members of their family, including their mother and aunt, came to Australia from Guinea in 2005 on an Offshore Humanitarian Visa. Their aunt was the principal applicant for the visa.
  2. The Department's records about the applicants were based on information provided by their mother and aunt during the resettlement process. These records show the applicants' dates of birth to be 3 March 1993 and 7 October 1996, and their place of birth as Liberia. These records also state that the applicants' father is deceased.
  3. Prior to these two FOI applications, the records also mistakenly stated that the two applicants were their mother's 'nephew' and 'brother' respectively, not her sons. This error was made on their 'Document for travel to Australia' (DFTTA).[1] This did not reflect mistaken information provided to the Department. Rather, it seems that an Australian Government official made a mistake when completing the DFTTA, confusing the applicants' mother with their aunt on account of the similarity of their names.
  4. On 12 May 2011, the applicants applied to the Department under s 48 of the FOI Act for amendment of their personal records. The following amendments were requested:
    • amendment of the elder brother's date of birth from 3 March 1993 to 22 May 1991
    • amendment of the younger brother's date of birth from 7 October 1996 to 31 May 1996
    • amendment of the applicants' place of birth from Liberia to Freetown, Sierra Leone
    • amendment of the applicants' relationship with their mother from 'nephew' and 'brother', to 'son', and
    • amendment of the applicants' father's details to state that he is alive, not deceased.
  5. In a decision of 10 June 2011, the Department accepted that the information in the DFTTA stating that the applicants were their mother's 'nephew' and 'brother' respectively was incorrect. The records were amended to indicate that each applicant is his mother's 'son'. However, the Department refused to make the other amendments requested by the applicants.
  6. The applicants sought internal reviews of the Department's decisions. On 10 August 2011, the Department refused to make further amendments to the applicants' records.
  7. On 5 September 2011, the applicants lodged two applications for IC review of the Department's internal review decisions.

 Decisions under review

  1. The decisions under review are the Department's two internal review decisions on 10 August 2011.

 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 in this case are whether the information on the Department's records is incorrect in relation to:
    • the applicants' dates of birth
    • the applicants' place of birth, and
    • a statement that the applicants' father is dead.
  2. If any of this information is incorrect, it must then be determined whether that information should be amended.

 Is the currently recorded date and place of birth incorrect?

  1. The evidence provided by the applicants to support their contention about their dates and place of birth are:
    • a scanned copy of two 'late/delayed' birth certificates that appear to have been issued by the Sierra Leone Office of Chief Registrar in 2004, giving the dates and place of birth claimed by the applicants (the certificates), and
    • a statutory declaration made by the elder brother on 5 April 2011.

 Birth certificates

  1. The Department relies on the information provided during the resettlement process. All the documents on file, including the visa application signed by the applicants' aunt and mother, give the applicants' dates of birth as 3 March 1993 and 7 October 1996, and their place of birth as Liberia.
  2. According to the date on the certificates, the certificates were issued in 2004, almost six years before the application. The applicants' representative submitted that this made the certificate more reliable, indicating that it was unlikely to have been obtained with an application under s 48 in mind. I consider this relevant.
  3. However, when the certificates were issued, the applicant, his mother and his aunt were refugees in Guinea. Their visa application stated that all their identity documents had been burned. There is no information in the elder brother's statutory declaration about who obtained the birth certificate and how they did so in the absence of the applicant and his mother. In a later submission, the applicants' representative stated that the birth certificate had been obtained by the applicants' father, who the applicant contends is alive and living in Sierra Leone.
  4. The Department submits that Sierra Leone birth certificates are often unreliable. They submit that they are based on 'self-reporting information'; in other words, that they are issued solely on the basis of information provided by the person who applies for them, that no other record is consulted, and that other reliable identification is not required.
  5. Considering the document on its face, one possible inference from the fact that the document is stated to be a 'late/delayed' birth certificate is that it was not based on a contemporaneous record of birth.
  6. The applicants' representative conceded during the IC review process that the certificate was probably based on self-reported information, but argued that this should be given no less weight than the information provided during the resettlement process. This information was also based on reported information (from the applicants' aunt), not on official documents. However, reported information varies in weight depending on the source of the information and the circumstances in which it was given. The information provided to the Australian authorities during the resettlement process came from both the applicants' aunt and mother so could be argued to have more weight.
  7. The Department submitted that the certificate presented was a scanned copy of poor quality which removed security features from the document and which meant that its authenticity could not be verified by the Department's Document Examination Unit. On IC review, the applicants' representative was asked to provide better versions of the certificates, but replied that none were available. It is not clear whether the scanned copies are in fact a copy of a genuine official document issued by the Sierra Leonean authorities.
  8. The younger brother's birth certificate uses a different first name than that used by him during the visa application process, and some numbers on the younger brother's certificate appear to have been overwritten. This greatly undermines the weight that I am willing to attach to this document.
  9. The certificates contradict consistent evidence from the resettlement process: that the applicant, his mother and his brother were born in Liberia, not Sierra Leone.
  10. Substantial doubts have been raised about the provenance of the certificates. I give the certificates little weight.

 Self-reported information

  1. The applicants' case gains some support from the statutory declaration of one of the applicants, the elder brother. In it, the elder brother declares:

    In the visa application, the Department was told that I was born on 3 March 1993 in Liberia. This is not the truth. I was born on 22 May 1991 in Freetown, Sierra Leone. I know this as I recall my date of birth and know that there is five years difference between [my brother] and I, not three.

  2. I give some weight to this statement by the elder brother. I accept that he would have an idea of the gap between his age and his younger brother's. Although he obviously cannot remember firsthand when and where he was born, this information would presumably have been made known to him from a young age.
  3. The applicants' representative submitted that it is illogical to rely on the information provided by the applicants' aunt and mother, because the Department has accepted that mistaken information found its way onto the record during the resettlement process: namely, the statement that the applicant and his brother were their mother's nephew and brother, rather than her sons. But in both the visa application form and her interview, the applicants' aunt clearly and correctly explained the family relationships involved. The mistake was made at a later stage by a departmental official. The mistake was not made by the applicants' aunt or mother and has no effect on the credibility of the evidence provided by them during the resettlement process.

 Findings

  1. The Department's records were principally based on information provided by the applicants' aunt, not by the applicants themselves. For reasons I have explained above, I give little weight to the certificate provided in support of the applicants' case. I give some weight to the elder brother's statutory declaration. However, in the absence of further evidence such as the original of the certificate and evidence indicating that it is based on a contemporaneous record of birth, or evidence from other relatives, I find that the applicants are more likely to have been born at the place and date recorded in the Department's records, than at the place and date that they claim. The information on the Department's record about the applicants' date and place of birth is not incorrect.
  2. Since on the evidence before me the information currently on the departmental record is not incorrect, it is not necessary to consider whether the record should be amended.

 Is the Department's record about the applicants' father incorrect?

  1. The Department's records state that the applicants' father is deceased. This is based on information given during the resettlement process. According to the notes from an interview between an official and the applicants' aunt, in April 2003 the applicants' aunt saw the dead body of the applicants' father (her sister's de facto spouse), along with the bodies of other family members in Liberia, following an attack on their place of residence.
  2. The elder brother states in his statutory declaration that the family only realised that his father was still alive after moving to Australia. The man that he identifies as his father (the putative father) lives in Sierra Leone and re-established contact with the family through the applicants' uncle, who is resident in Australia but travels to Sierra Leone. The elder brother states that he talks to his putative father by telephone from time to time. The elder brother has not claimed to have seen or met his putative father since they have re-established contact. The birth certificates state that the putative father is in fact the applicants' father, and that his nationality is Sierra Leonean.
  3. There is little evidence available on this matter: an oral statement made by the applicants' aunt during the resettlement process, against the elder brother's statutory declaration. Both statements are potentially unreliable. It is hard to test the reliability of the aunt's statement at this point. The Department conceded in submissions for the IC review that the applicants' aunt may have had her own reasons for making the statements that she did.
  4. It is also difficult to assess the reliability of the elder brother's belief regarding the putative father without further evidence. No evidence has been provided by the applicants' uncle, who seems to have played the leading role in identifying the putative father as the applicants' father. And, although I accept that a more conclusive form of evidence (such as DNA testing) may be difficult to obtain, no evidence has been provided from the putative father himself.

 Findings

  1. On the evidence before me, I am not convinced that the record in relation to the applicants' father is incorrect.
  2. If the applicants' account is correct, it should not be impossible for them to provide further evidence. This evidence might include an original birth certificate, evidence explaining the nature of the applicants' links with Liberia and Sierra Leone, evidence from other family members, or ideally, the results of genetic testing. If the applicants made new FOI applications with such evidence, it is possible that the outcome would be different.
  3. Since on the evidence before me the information currently on the departmental record is not incorrect, it is not necessary to consider whether the record should be amended.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's two decisions of 10 August 2011.

Toni Pirani
Acting Freedom of Information Commissioner

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

[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.