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'A' and Department of Immigration and Citizenship [2013] AICmr 7 (8 February 2013)

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

Summary of case details
Applicant:

'A'

Respondent: Department of Immigration and Citizenship
Decision date: 8 February 2013
Application number: MR12/00011
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 set aside the decision of the Department of Immigration and Citizenship (the Department) of 18 November 2011 and substitute my decision, under s 50 of the Freedom of Information Act 1982 (the FOI Act), to amend the Department's record to show the applicant's date of birth as 6 February 1997.

 Background

  1. On 20 April 2011, the applicant applied to the Department to amend its record of his name, birth date and family details.
  2. On 18 November 2011, the Department approved the applicant's request to have his name amended and record of family details annotated. But it refused his request to amend his date of birth from 10 February 1995 to 6 February 1997.
  3. On 22 December 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 18 November 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for amendment or annotation of documents of the agency that contain personal information that is incomplete, incorrect, out of date or misleading.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an agency may amend the record where it is satisfied that the information that it contains is incomplete, incorrect, out of date or misleading.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date or not misleading; or by adding a note specifying the respects in which the information is incomplete, incorrect, out of date or misleading.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 arrived in Australia from Afghanistan with his aunt under an Offshore Humanitarian Visa in 2007. Due to his youth at the time of his arrival in Australia, the applicant did not complete his Document for Travel to Australia (DFTTA) or his Humanitarian Visa application. These documents were completed by his aunt on his behalf. The applicant's aunt gave the applicant's birth date as 10 February 1995. She also gave that date as his birth date on the Agreement to Undertake Care of an Unaccompanied Humanitarian Minor that she completed.
  2. The applicant's aunt has at various times described herself as being the applicant's mother or his sister.
  3. The applicant is currently under an Order of Guardianship of the Secretary of the Victorian Department of Human Services (DHS Victoria). He is in foster care, supervised by the Victorian Child Protection Service.
  4. When the applicant applied to have his name, date of birth and family details amended or annotated under the FOI Act, he provided the Department with a number of documents to support his request. These included his original Birth Registration Card and Particulars of the Newly Born, and certified translated copies of these documents. The applicant's birth date is given on these documents as 6 February 1997. The applicant also provided a letter from DHS Victoria in support of his application.
  5. In its decision, the Department considered the evidence provided by the applicant, information received from the applicant's aunt as part of the application for a Humanitarian Visa, and the report of a radiologist which (through bone age testing) estimated the applicant's age at the time to be 18 years — four years older than the applicant claimed to be.
  6. In deciding not to amend the applicant's date of birth, the Department gave weight to the radiologist's report, the information provided by the applicant's aunt in the Humanitarian Visa application, and other information on the Department's files and computer systems. The Department decided that, due to the significant difference between the applicant's age as estimated by the radiologist and the age he claimed to be, it was not satisfied that the applicant's currently recorded date of birth was incorrect. In submissions to the Office of the Australian Information Commissioner, the Department acknowledged that bone age testing is not completely accurate, but said that the radiologist's report was just one of a number of factors it took into account in refusing the applicant's request.
  7. In submissions to the OAIC, the Department outlined its concerns with the evidence provided by the applicant in support of his claimed dated of birth. In particular, the Department noted that:
    • A 'taskera', the usual form of identification provided by an Afghani person, in the applicant's name was not provided.
    • Birth certificates in Afghanistan are very rare because, upon registration of a birth, an identity card is usually issued and a birth certificate is not required.
    • The Department could not locate any information from the Afghan Ministry of Interior Affairs on birth certificates.
    • The letters provided by DHS Victoria and Wesley Mission Victoria in support of the applicant's request provide opinions about the applicant's age without any supporting documentation.
    • There are a number of inconsistencies on the identity documents provided by the applicant: for example, between the issue dates on the Particulars of the Newly Born and the Birth Registration Card.
    • The applicant's mother has stated that she wishes to come to Australia. If the applicant is under 18 years of age at the time of his mother's application, this will likely improve the chances of his mother's application being approved.
    • The applicant's name has been referred to in different ways in documents provided to the Department. However, until the applicant made his amendment request, his date of birth has consistently been given as 10 February 1995.
  8. In support of his application and following discussions with his mother, the applicant provided the following additional information to the OAIC:
    • The applicant's mother lived in Iran from 1994 to 2001.
    • The applicant was born in Iran, not Afghanistan, in 1997.
    • Following his birth, the applicant's mother received a vaccination card for the applicant which recorded his birth date as 6 February 1997.
    • Neither the Birth Registration Card nor the Particulars of the Newly Born were issued at the time of the applicant's birth.
    • The Particulars of the Newly Born was obtained from a health clinic in Afghanistan in 2006 using the information on the vaccination card and the applicant's father's taskera.[2]
    • The Birth Registration Card was issued in Afghanistan in 2010 using the details on the vaccination card.[3]
    • When these documents were issued, the issuing authority in Afghanistan did not ask where the applicant was born and presumed the applicant had been born in Afghanistan.
    • The applicant's mother no longer has the vaccination card.
The applicant also provided two letters from Wesley Mission Victoria and a further letter from DHS Victoria supporting his request for an amendment of his records.
  1. In 2012, the Australian Human Rights Commission published a report on its inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children.[4] The report found that:

    It is now beyond question that wrist x-ray analysis has been discredited as a means of assessing whether an individual is an adult. A mature wrist is not informative of whether a person is over the age of 18 years. Having a mature wrist is quite consistent with a person being under the age of 18 years.[5]

  2. I do not think it is appropriate to give much weight to the radiologist's report in this IC review, particularly given the availability of other documentary evidence about the applicant's age.
  3. I note the Department's concerns about the absence of a taskera in the applicant's name. I also note that, given the rarity of a birth certificate being issued in Afghanistan, there is some uncertainty about the authenticity of the documentation provided by the applicant, particularly given some of the inconsistencies in the documents as noted by the Department. Further, as the Department noted, the applicant had previously applied to have his name amended but did not, as part of that application, advise the Department that his date of birth was incorrect.
  4. However, I consider that there is also substantial evidence to support the applicant's claim that his birth date as currently recorded is incorrect.
  5. The only basis for the currently recorded date is the Humanitarian Visa application and the DFTTA. I do not consider these documents to be strong evidence that the applicant was born on 10 February 1995. The applicant did not provide his currently recorded date of birth to the Department, nor did he complete the request to amend his name. In both instances, the source of this information was the applicant's aunt. Given the inconsistencies in the statements and information provided by the applicant's aunt to date, I do not think much weight should be given to the accuracy of the information she has provided about the applicant's date of birth.
  6. The only evidence currently available that supports the birth date proposed by the applicant is the Particulars of the Newly Born and Birth Registration Card. Both of these documents give the applicant's date of birth as 6 February 1997. The documentation provided by the applicant has been translated by a NAATI-accredited translator. I give weight to this evidence.
  7. I also give weight to the two letters from the applicant's case workers at Wesley Mission Victoria. These advise that the applicant identifies as a 15-year-old and has been observed by Wesley Mission Victoria staff as having both the maturity and physical development of a 15-year-old. Whilst I agree with the Department that these letters only provide opinions about the applicant's age, I think it is appropriate to give them some weight because of Wesley Mission Victoria's relationship with the applicant.
  8. For the same reasons, I also give weight to the letters from DHS Victoria in support of the applicant's request for amendment and annotation of his personal record. Because of the Order of Guardianship, DHS Victoria has had a significant supervisory role in the applicant's life and is in a position to provide an informed assessment of his age and family relationships.
  9. I give some weight to the additional information that the applicant provided to the OAIC, explaining how his supporting documents were issued (see [16] above). I think that explanation is plausible.
  10. I note the Department's comment that the applicant's mother's application to come to Australia would be advantaged if the applicant is under 18 years of age. I accept that this might constitute an incentive for the applicant to make a false claim. But it is not evidence for or against the correctness of the applicant's proposed date of birth. I do not give this much weight.

 Findings

  1. On the basis of the documentation that the applicant has provided in support of his proposed date of birth, and in the absence of any strong evidence to the contrary, I am satisfied that the Department's current record of the applicant's date of birth is incorrect.

 Should the date of birth record be amended?

  1. A significant difference between a person's actual age and their age as reflected in government records may cause them significant disadvantage. When the applicant in this IC review turns 18, he will no longer be able to access the assistance of the Victorian Child Protection Service, the foster care system and their associated services. His date of birth in the Department's records will affect the point in time when the applicant becomes ineligible for these services.
  2. It is obviously important that government records are as accurate as possible, and that any alterations are justifiable. If the exact date of a person's birth cannot be established, an agency should record the closest possible approximation to the correct date. When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied than the date proposed by the applicant is correct before it can amend its record under s 50. It is enough that:
    • the date proposed by the applicant is more likely to be the correct date, or to be closer to the correct date, than the date currently recorded, and
    • there is no other date that is more likely to be correct.
The onus is on the agency to demonstrate that, on the balance of probabilities, the current record is not incorrect or that it should not be amended.[6]
  1. In this case, given the unreliability of the applicant's personal details as they were initially provided to the Department by his aunt, the unreliability of bone age testing, and the documentation provided by the applicant in support of his request, I think it is more likely that the applicant was born on 6 February 1997 (as he contends) than on 10 February 1995 (as the Department's record indicates).

 Findings

  1. I am satisfied that 6 February 1997 is closer to the applicant's actual date of birth than 10 February 1995. The record of the Department should be amended.

 Decision

  1. Under s 55K of the FOI Act, I set aside the Department's decision of 18 November 2011 and decide, in substitution for that decision, to amend the record to show the applicant's date of birth as 6 February 1997.

James Popple
Freedom of Information Commissioner

8 February 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] In the copy of the Particulars of the Newly Born originally provided by the applicant to the Department and to the OAIC, the date of issue was given as 1997. Following further inquiries, the applicant advised that the document had been reviewed by a translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) who stated that the date of issue was not given on the document.

[3] The points made in footnote 2 about the Particulars of the Newly Born apply also to the Birth Registration Card.

[4] Australian Human Rights Commission, An age of uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children, July 2012, www.hreoc.gov.au/ageassessment.

[5] Australian Human Rights Commission, An age of uncertainty, p. 7.

[6] See 'K' and Department of Immigration and Citizenship [2012] AICmr 20, [12–14], [39].