Acingoth and Minister for Immigration and Citizenship

[2008] AATA 260

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 260

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/5637

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAKUR BOUNG ACINGOTH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:18 March 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sgd) G.D. Friedman

Senior Member

ADMINISTRATIVE
APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

V2007/5637

ACINGOTH

and

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

TUESDAY, 18 MARCH 2008

MR M. ACINGOTH appears in person

MS T. VAN DUYN appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [12.11 pm]

MR FRIEDMAN:    The only matter for me to decide is whether the date of birth that appears on the records of the Department, that is 28 September 1970, is correct.  Mr Acingoth said that the correct date of birth should be 9 February 1977.  In support of his application, he produced a Sudanese birth certificate, which was obtained on 29 July 2006.  He said that somebody went to Sudan and obtained this certificate from Mr Acingoth’s uncle.  He said that his uncle went to the hospital and told the hospital the correct date of birth and the certificate was then issued.  It is very hard for me to determine whether that date is correct or not, but as Mr Acingoth’s uncle told the hospital of the date of birth and then the birth certificate was issued, I must have some doubts whether it is correct.

Mr Acingoth made a statutory declaration stating that the birth date on his passport is wrong and he said that he was not able to correct the mistake after it was made.  However, I am taking into account that his passport and his United Nations identity card have both recorded his date of birth as 28 September 1970.  I also take into account that the date of birth recorded in his application for a humanitarian visa has written on it 28 September 1970 with a notation “confirmed.”  I also note that in his form 80 and form 815 he lists the date of birth 28 September 1970 and it appears that he was assisted to complete those forms. 

The record of his interview for refugee visa indicate that he had the assistance of a DFAT interpreter and the notes of the interview suggest that he believed his date of birth was 28 September 1970.  That date is also listed on his document for travel to Australia.  I have taken into account that the statutory declaration signed on 11 December 2006 states that in his old passport the year of his birth is correct and I take into account that in the evidence today he said that that information was incorrect and I note that he was assisted in the preparation of that statutory declaration.

I also take into account his statement that when he arrived in Australia he contacted his uncle in Wau in Sudan.  Unfortunately, there is no confirmation from his uncle.  There is a letter from Mr Acingoth’s cousin, Mr Kooc, who claims to have been present at Mr Acingoth’s birth and Mr Kooc gave evidence in support of his statement.  In my view, his evidence should be treated with some caution because it refers to events that took place some years ago and Mr Kooc claims to remember the date of birth exactly of Mr Acingoth but not of his brothers or sisters.

In weighing up all the material, I am guided by the tribunal’s decision in Ashari and will make my decision on the basis of all the evidence before me to make the correct or preferable decision.

In my view, Mr Acingoth has had ample opportunity before this application to correct the documents that record his date of birth and consequently I am not satisfied that the record held by the Department is incorrect.  Consequently, it is my

view that the records should not be amended under the Freedom of Information Act and I affirm the decision under review.

END OF EXTRACT  [12.21 pm]