Ali and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1003
•12 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/116
GENERAL ADMINISTRATIVE DIVISION ) Re MARYAN ALI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date12 October 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the personal records of the applicant are incorrect and her birth date of 2 July 1982 be deleted and corrected by inserting the date 19 October 1985. ..............................................
Senior Member
FREEDOM OF INFORMATION – application to amend personal records held by the Minister – application to amend by substituting a different date of birth – whether records “incorrect” – applicant a Somali refugee – does not have nor have access to documents to prove birth date – circumstances considered – decision set aside
Freedom of Information Act 1982 s 48 and s 50
Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997)
Re Mulder and The Department of Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 410
Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410
Re Goitom and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 204
REASONS FOR DECISION
12 October 2005 Mr John Handley, Senior Member 1. Ms Ali asserts that she was born on 19 October 1985. The respondent has a number of records which identify her as having been born on 2 July 1982. She has applied pursuant to the Freedom of Information Act 1982 (FOI Act) to amend a number of records where that date is recorded. A delegate of the Minister refused her application. She accordingly seeks a review of that decision.
2. Section 48 of the FOI Act permits a person to apply to amend a document which contains personal information about that person which is “incomplete, incorrect, out of date or misleading”. Section 50 provides that if an agency or a Minister is satisfied that a record of personal information is “incomplete, incorrect, out of date or misleading” and that information was available for use for an administrative purpose, the agency or Minister may amend the records.
3. Ms Ali appeared without representation at the hearing. The respondent was represented by Mr Chand. The evidence as summarised below takes account of the evidence heard at the hearing and the contents of documents which were lodged with the Tribunal.
4. Ms Ali entered Australia on a special humanitarian permanent visa (subclass 202) in February 1999. The documents which contain a reference to her date of birth, and which she applies to have amended, are identified as follows:
(i)Refugee and Special Humanitarian Proposal completed on 25 February 1997, by Ms Ali’s uncle in Australia.
(ii)Application for permanent visa on refugee or humanitarian grounds dated 22 May 1997, completed in Nairobi.
(iii)Details of child or other dependent family member aged 18 years or over dated 22 May 1997, completed in Nairobi.
(iv)Travel document completed by United Nations High Commissioner for Refugees at Kakuma, Kenya on 12 January 1998.
(v)Health documentation schedule completed in Nairobi on 27 February 1998.
(vi)Approval for resettlement completed at Nairobi on 18 December 1998.
(vii)Document for travel to Australia dated 30 December 1998.
the facts
5. Ms Ali said that she was born at a hospital in Baidoa, Somalia and she learnt from her mother that a certificate of birth was issued at the time. She said that she also learnt from her mother that the document was lost when she and other members of her family were displaced during civil unrest in Somalia in the early 1990’s. She and other family members eventually entered a refugee camp at Kakuma in Kenya where the application for relocation to Australia as a refugee on humanitarian grounds was initiated.
6. Ms Ali said her uncle, who was a resident of suburban Melbourne, was approached by her mother to make an application by way of proposal for migration. She said her mother approached a person to write a letter to the uncle to advise him of the names and dates of births of all of the children. She understood that letter was the basis of the proposal form, completed by her uncle and found at pages 29 to 32 of the T‑documents. It is dated 25 February 1997 and records Ms Ali as having the date of birth of 2 July 1982.
7. Ms Ali said that the letter containing the information as to the names and dates of birth of her mother and siblings, was forwarded to her uncle by facsimile. She said that there was some difficulty with transmission of the documents and parts were rewritten by hand. She said that errors were made with respect to those parts which were rewritten, and that her date of birth was incorrectly recorded as 2 July 1982 when it should have been recorded as 19 October 1985. As a result, her uncle received incorrect information as to her date of birth and recorded the date of 2 July 1982.
8. In May of 1997, Ms Ali’s mother was required to complete other documents in Nairobi with respect to the application for refugee status and to qualify for permanent visa in Australia, which included the identity, names and dates of birth of the children. Ms Ali said that her mother approached an English speaking person in Nairobi and asked him to complete the documentation. Those documents are found at T5 and T6 respectively and it is noted that they were completed on 22 May 1997 by Hussein Hassan Sheika of Post Office Box 6799 Nairobi, Kenya. In an unsigned declaration lodged by Ms Ali at the commencement of these proceedings, she recorded that her mother provided Mr Sheika with a copy of the proposal form completed by her uncle and thereafter the documentation contained incorrect references to her date of birth.
9. Ms Ali said that she first realised that her date of birth was incorrectly recorded in approximately 1997 or 1998, when she became aware of the contents of the travel document completed by the United Nations Commissioner for Refugees in Kakuma (page 55), or when she observed the travel documents completed by the Australian Government authorities in Nairobi in December 1998. She said that her mother also learnt that her date of birth was incorrectly recorded but decided not to bring it to the attention of relevant authorities in fear that it would delay departure to Australia.
10. Ms Ali said that she and her family arrived in Melbourne in February 1999 but were afraid to notify relevant authorities of the incorrect date in fear that she could be returned to Somalia. Later Ms Ali enrolled in a secondary school in Melbourne but by reason of her date of birth being recorded as 2 July 1982, she was placed in a class with much older students. When she notified school authorities that she was in fact born in 1985, she was reassured by teaching staff that she would not be returned to Somalia (as she believed) should she disclose the true date of birth, as she had obtained status as a permanent resident. She was then referred to Ms Rosalind Lam, a migration social worker and registered migration agent, who made applications to the Department of Immigration in May and October 2004 to have her records changed.
11. Ms Ali said that she has made the application to amend her records and have her true date of birth inserted because of the difficulties she encountered at school being placed into appropriate classes (having regard to her true age). Additionally, she said that she did not want to continue to “tell lies” to various agencies which she had done in the past by recording her date of birth as 2 July 1982.
12. Ms Ali said that she could remember that at the age of seven years in Mogodishu, her mother recorded her date of birth as 19 October 1985. She said on that occasion she was being enrolled in a religious school where she and other children were to learn the Koran. From that age she said that she was aware that her date of birth was 19 October 1985.
discussion
13. On the explanation given by Ms Ali, it would appear that the letter faxed to her uncle in February 1997 preparatory to him making the proposal for migration application, contained incorrect information as to her date of birth. It would appear that the incorrect information found its way into all subsequent documents either by the recording of the date of birth of 2 July 1982 or a recording of her age in years which corresponded to her having been born in 1982.
14. Ms Ali said that she first became aware of the error in either 1997 or 1998 when documents were completed at the United Nations Office in Kakuma or at the Australian High Commission in Nairobi. She said that she and her mother were reluctant to disclose the error in fear that it would delay the processing of the application to travel to Australia. I accept the explanation as entirely plausible given that Ms Ali, her mother, brothers and sisters were detained in a refugee camp at Kakuma for some years prior to successfully obtaining a visa to travel to Australia. They entered the refugee camp by reason of the civil unrest in Somalia, at a time when members of the immediate family had been killed or had “disappeared”. I accept that the desire to leave this environment without delay would have been strong and that it would have been likely that if notification was made of errors in the documentation that there would be delay in the processing of the applications.
15. Ms Ali said that she recorded the date of birth 2 July 1982 in Australia in fear that she would be returned to Somalia if she disclosed the error. (A statement on the Tribunal file from Centrelink records her date of birth as 2 July 1982). I accept that Ms Ali believed, after she entered Australia, that disclosure of her true date of birth might cause her to be returned to Somalia. She has been reassured that this would not occur and from 2004, applications were made to amend her records in which she asserted that the records were wrong and that her true date of birth was 19 October 1985.
16. Ms Ali said that she wanted to have her records amended to record her date of birth as 19 October 1985 so that she would no longer have to tell lies which she understood she had been doing when disclosing the date of 2 July 1982 as her birth date. Her honesty is to be commended. In effect she is disclosing that she is three years younger than the age that the authorities have otherwise recorded. The respondent submitted that amendment of the records as claimed may permit access to benefits which she might not otherwise be entitled. When Mr Chand was asked to elaborate upon that contention, he submitted that there were benefits payable to students and young adults by Centrelink that she might otherwise qualify to receive in the event that her date of birth is amended. The specific benefits were not identified.
17. Having regard to the tragic circumstances of Ms Ali and her family in Somalia, I have little difficulty in accepting the explanation given at the hearing that personal documents as to identity have either been lost or are incapable of being located.
18. I am satisfied that Ms Ali is a witness of truth. The documents lodged in these proceedings contain many references to her date of birth being 2 July 1982. But when the circumstances of the completion of those documents is understood, and put in context, the repeated reference to that date is explained. I also accept the explanation for the reluctance on the part of Ms Ali and her mother in Kakuma or Nairobi, to notify relevant officials that the date of birth as recorded was incorrect. In 1999, when she arrived in Australia, Ms Ali would have been 14 years of age. In 2004, when she first notified her teachers of her year of birth of 1985, she would have been 19 years. Between those years I think it unreasonable to expect that she would notify Australian authorities of her true date of birth, not only by her fear of being returned to Somalia but also, I think obviously, by reason of her age, her vulnerability as a recently arrived refugee and her lack of familiarity with Australian custom and laws.
19. In Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410, the Tribunal referred to s 61 of the FOI Act and decided that there was a burden of proof upon the Minister to satisfy the Tribunal that the decision to refuse the amendment of records was justified. In Re Mulder and The Department of Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 410 and Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997) it was decided that there was no onus upon any party in the Tribunal, but it is incumbent upon an applicant to put some material before the Tribunal rather than to simply assert that a document is wrong or contains incorrect information.
20. In the present case, Ms Ali asserts that her personal information, held by the respondent, is incorrect and rather than her date of birth being recorded as 2 July 1982, she has requested that her records be amended to record her date of birth as 19 October 1985.
21. The respondent asserted that amendment of the records could permit eligibility to a Centrelink benefit to which the applicant would not otherwise be entitled. But Centrelink is not the respondent in these proceedings. Section 50 (c), which requires satisfaction before the records are amended that the “incorrect information has been, is being or is available for use by the agency or the Minister for an administrative purpose”. There was no submission that the information as to the date of birth, 2 July 1982, has been used by the Minister in these proceedings in relation to any application concerning a Centrelink benefit. It may be that that information is being used for some other purpose by the Minister but I am struggling to comprehend how entitlement, if at all, to a Centrelink benefit has relevance in these proceedings when a specific reference to a particular benefit was not identified, nor was there any evidence of qualification to a benefit, upon reduction of her age.
22. If the submission is relevant, in my view it may be distinguished from the reasoning in the recent Tribunal decision of Re Goitom and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 204. In that application, Mr Goitom applied to have his personal records amended by having a date of birth substituted which would have the effect of recording his age as six years older than that recorded in the Minister’s records. The Tribunal decided that if the application were allowed, he would have an earlier entitlement to Centrelink benefits and, or, to superannuation entitlements. The same cannot apply in the present circumstance where Ms Ali is presently understood by the Minister to be 23 years of age but she requests that her age be reduced to the age of 20.
23. I place some weight on Ms Ali’s evidence in these proceedings that she has a memory from the age of seven of the date 19 October 1985 being her birth date as told to her by her mother. That occurred in 1992, well before she and her family entered a refugee camp and clearly in the absence of any contemplation of an application for a permanent visa to enter Australia. I am also satisfied that documents are not available to her, nor can they be obtained by her, to corroborate her date of birth of 19 October 1985.
24. In all of the circumstances I am satisfied that Ms Ali was born on 19 October 1985 and in those circumstances the records of her personal information are incorrect and should be amended.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 6 October 2005
Date of Decision 12 October 2005
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr H Chand
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