Goitom and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 204

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/52

GENERAL  ADMINISTRATIVE DIVISION

Re:         ESTIFANOS TEDLA GOITOM

Applicant

And:       MINISTER FOR IMMIGRATION AND
  MULTICULTURAL AND INDIGENOUS

AFFAIRS

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             11 March 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

FREEDOM OF INFORMATION – amendment of date of birth – whether documents incomplete, incorrect, out of date or misleading – onus of proof – probative value of supporting material –benefit accruing to applicant as a result of an amendment to the record to the detriment of the Commonwealth

Freedom of Information Act 1982 ss 48, 50, 54(1)(g), 55, 66(1)

Re Mulder and 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 Boyd and Health Insurance Commission (AAT 11870, 19 May 1997)

Re Cox and Department of Defence (1990) 20 ALD 499

REASONS FOR DECISION

11 March 2005  Miss E.A. Shanahan, Member

1.      This is an application by Mr Estifanos Tedla Goitom (the applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 23 December 2003, to refuse the applicant's request to have his date of birth amended in his departmental records.  Mr Goitom contended his true date of birth was 7 October 1960 and not 7 October 1966.  The latter date appeared on his Somali passport, his travel documents to enter Australia (his Application for Grant of Australian Citizenship, his Certificate of Australian Citizenship, and Document for travel to Australia) and his application to sponsor his sister to migrate to Australia in 1999.  

2.      The applicant was represented by Mr M. Gerkens, solicitor, and the respondent was represented by Ms J. Greaves, solicitor. 

3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) and the supplementary T‑documents.  Mr Estifanos Goitom, his brother, Mr Asmelash Tedla Goitom, and his sister, Ms Abrhet Tedla Goitom, gave evidence before the Tribunal.  The applicant tendered a Statutory Declaration of Mr Estifanos Goitom dated 29 April 2004 (Exhibit A1), an undated Proof of Evidence of Mr Asmelash Goitom (Exhibit A2) and an undated Proof of Evidence of Ms Abrehet (Exhibit A3).

4.      The issues before the Tribunal are essentially those of facts.  The applicant asserted that his correct date of birth was 7 October 1960 and that this was evidenced by his driver's licence, his work personnel file, an identity card issued by the Transitional Government of Eritrea and a Duplicated Certificate from the Department of Eritrean Education of the Ministry of Education of the Provisional Government of Ethiopia.  However, his documented date of birth on his departmental records is 7 October 1966.

BACKGROUND

5.      Mr Goitom claimed he was born in Eritrea on 7 October 1960 and completed schooling to a Year 10 level in that country in 1982.  His further secondary education was interrupted by civil war in Eritrea.  He escaped to Egypt via Sudan, to live with his brother.  While in transit (he walked) he obtained a Somali passport which recorded his date of birth as 7 October 1966.  Mr Goitom admitted freely that he altered his date of birth to entitle him to complete his secondary education in Egypt.  Egypt had a cut‑off age of 20 for secondary education.  Mr Goitom completed his secondary education in Egypt, in 1987.  In the same year he migrated to Australia with his brother, using his Somali passport as an identification document.  Mr Goitom applied for Australian citizenship on 27 June 1989, declaring his date of birth to be 7 October 1966 (T8).  His application was successful and citizenship was granted on 26 January 1990. 

6.      On 25 February 1999 Mr Goitom completed a Refugee and special humanitarian proposal, proposing the migration of his sister Abrehet Tedla and her daughter Harerta Teame, and again declared his date of birth as being 7 October 1966.

7.      In 1993 Mr Goitom obtained an Identification Card issued by the Transitional Government of Eritrea. In 1995 he also obtained a Duplicated Certificate from the Ministry of Education of the Provisional Government of Ethiopia.

8. On 24 October 2002 Mr Goitom lodged an application, under s 48 of the Freedom of Information 1982 (the Act), to amend departmental records on the basis that his date of birth was 7 October 1960 and not 7 October 1966.  On 22 April 2003 the Department of Immigration and Multicultural and Indigenous Affairs (the Department) refused the application.  On 23 December 2003 this decision was affirmed on the grounds that the evidence provided by Mr Goitom did not outweigh the existing repeated declarations by him that his date of birth was 7 October 1966.  On 20 January 2004 Mr Goitom sought review of the delegate's decision by Tribunal.

EVIDENCE

Estifanos Tedla Goitom

9.      Mr Goitom had provided a Statutory Declaration dated 29 April 2004 (Exhibit A1) stating that he was born on 7 October 1960 and commenced school in September 1969.  His schooling was delayed because of the number of students competing for places in the primary education system in Eritrea.  He completed Year 7 in 1976, following which his schooling was interrupted by civil war in Eritrea which resulted in the closure of his school.  Between 1976 and 1979, he stayed at home and had no formal schooling.  From 1980 to 1982, he attended school in Amsara (capital city of Eritrea), completing Years 8, 9 and 10.  In 1983 he went into hiding to escape forced conscription into the Ethiopian Army.  In 1984 he travelled on foot to Sudan.  In early 1985 he obtained a Somali passport to join his older brother in Egypt, in order to complete his secondary education.  As he had been told that Egypt limited secondary enrolment to persons under the age of 20 years, he declared his date of birth to be 7 October 1966 and this date appears on his Somali passport.  Subsequently, he obtained a tourist visa to travel to Egypt, and he completed Years 11 and 12 in Alexandria. 

10.     On completion of Year 12 in 1987, Mr Goitom immigrated to Australia with his brother and his brother's family.  All documentation after the 1985 issue of the Somali passport recorded Mr Goitom's date of birth as 7 October 1966.  The only documents before the Tribunal recording his date of birth as 7 October 1960 were an identification card issued by the Government of Eritrea on 19 February 1993 and a Duplicated Certificate from the Ministry of Education dated 16 January 1995 that states that he completed Year 8 in 1980 at the age of 20.  Mr Goitom had acquired the latter certificate when he visited Ethiopia in 1994/1995. 

11.     In his evidence before the Tribunal, Mr Goitom adopted his statutory declaration as true and correct in all its details. 

12.     Ms Greaves queried how Mr Goitom had obtained his identification card from the Government of Eritrea, issued on19 February 1993.  Mr Goitom explained that the Eritrean Workers Union was formed in Australia in 1988.  In order to join this union he had completed a registration form declaring his date of birth to be 7 October 1960.  After Eritrea gained its independence from Ethiopia, all Eritreans in Australia were issued with identification cards to enable them to vote in the Eritrean elections.  Mr Goitom said he had obtained a duplicate school certificate, issued on 16 January 1995, after an application to the Ministry of Education when he visited Ethiopia in 1994/1995.

13.     In his application for amendment of departmental records, Mr Goitom had listed the names and years of birth of his seven siblings.  He explained that there was no registration of births in Eritrea and he relied on information imparted by his mother, who had told him that her children were born three years apart with the eldest child, Asmelash, having been born on 15 October 1943.  His siblings' years of birth were 1943, 1946, 1950, 1953, 1956, 1961 and 1964.  Mr Goitom did not know what month in 1961 his sister Alem was born.  Despite the discrepancy with what his mother had told him, he stated that he was born in October 1960.

14.     Ms Greaves queried why Mr Goitom had delayed the lodging of his application for amendment to his departmental records, having obtained his identification card in 1993 and a duplicate school certificate in 1995.  Mr Goitom said that he had been working two shifts per day in the early 1990s and he did not have the time to pursue the matter.  He said "he kept putting it off [until next year]".  In 1999, when he proposed his sister's migration to Australia, he declared his date of birth as 7 October 1966, as all his official documents stated this to be his date of birth; except for his driver's licence and personnel records which indicated his date of birth was 7 October 1960.  In 2002 he applied to the Department for amendment of his departmental records because he realised that when he reached the age of 65, his official documentation would show his age to be 59, and this would impact upon his eligibility for an old age pension and perhaps his access to superannuation moneys. 

15.     In re‑examination, Mr Goitom stated that he relied on his memory when recording the years of birth of his siblings. 

Asmelash Tedla Goitom

16.     Mr Asmelash Goitom had provided proof of evidence (Exhibit A2) to which he attested.  He stated that the applicant was born on 7 October 1960 and that he had a clear recollection of his brother's birth.  He said he was 17 years old at the time and living at home.  He said he did not leave home to go to university (in the capital) until he was 19 years old.  In 1966 he was living and working in Massawa, a port city of Eritrea.

17.     Ms Greaves asked Mr Asmelash Goitom the years of birth of his siblings.  Mr Goitom stated he did not know the exact dates, only the years of birth and that all children had been born three years apart.  He agreed with Ms Greaves that Alem's birth year of 1961 did not correlate with the applicant's date of birth of October 1960.  However, Mr Asmelash Goitom declared that he was certain the applicant was born in 1960 as it was the year he left school to attend university in a capital city.  The Tribunal notes this does not tally with this witness' proof of evidence, which implied that he left home in 1962. 

Abrhet Tedla Goitom

18.     Ms Goitom's proof of evidence (Exhibit A3) declared the applicant's date of birth to be 7 October 1960 based on the three‑year gaps between the births of her siblings.  However, she stated that she had no clear memory of 1960 or the applicant's birth.  The Tribunal notes she was born in January 1953.

19.     In cross‑examination, Ms Goitom had difficulty with recalling exact times such as when she started school and she listed her siblings' ages as 61, 58, 54, 48, 45, 42 and 39 years, with her age being 51.  The Tribunal notes that, if, as Ms Goitom recalls, Alem was now aged 42, then Ms Goitom must have been born in 1962 or 1963.  The applicant and Mr Asmelash Goitom stated Alem was born in 1961.

DOCUMENTARY EVIDENCE

20.     The documentary evidence has been referred to previously, but in summary, Mr Goitom's Somali passport, the document for travel to Australia, his application for Australian citizenship and his sponsorship of his sister for immigration to Australia all state his date of birth as being 7 October 1960.  His Eritrean identification card and the duplicate certificate issued by the Ministry of Education in Ethiopia both note the date of birth as 7 October 1960.  A certificate from the Victory College in Alexandria dated 2 February 1987 confirmed that Mr Goitom attended that college during the 1986 and 1987 academic years, but does not indicate a date of birth.

THE LEGISLATION

21.     The relevant sections of the FOI Act are:

48          Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:

(a)that is incomplete, incorrect, out of date or misleading; and

(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the person may apply to the agency or Minister for:

(c)an amendment; or

(d)an annotation;

of the record of that information kept by the agency or Minister.

49          An application for amendment must:

(a)be in writing; and

(b)as far as practicable, specify:

(i)the document or official document containing the record of personal information that is claimed to require amendment; and

(ii)the information that is claimed to be incomplete, incorrect, out of date or misleading; and

(iii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(iv)the applicant's reasons for so claiming; and

(v)the amendment requested by the applicant; and

(c)specify an address in Australia to which a notice under this Part may be sent to the applicant; and

(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

…

51(1)       Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:

(a)take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and

(b)subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.

(2)          Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

(3)          For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.

51A        An application for annotation must:

(a)be in writing; and

(b)as far as practicable, specify the document or official document containing the record of personal information that is claimed to require annotation; and

(c)be accompanied by a statement by the applicant that specifies:

(i)the information that is claimed to be incomplete, incorrect, out of date or misleading; and

(ii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(iii)the applicant's reasons for so claiming; and

(iv)such other information as would make the information complete, correct, up to date or not misleading; and

(d)specify an address in Australia to which a notice under this Part may be sent to the applicant; and

(e)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

51B(1)     Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).

(2)          Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

…

61(1)       Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

(2)          In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.

SUBMISSIONS

The Applicant

22.      Mr Gerkins submitted that the issue before the Tribunal was whether the date of birth appearing in the departmental records is incorrect and, if so, whether it should be amended.  Mr Gerkins said that the applicant, in a setting of civil war and great unrest in Eritrea, had knowingly changed his date of birth in order to complete his secondary education.  Having done so, he had locked himself into perpetuating the incorrect data.  Mr Gerkins noted that opportunities had existed for the applicant to amend his departmental records between 1987 and 1999, but in so doing he may have jeopardised his application for citizenship and sponsorship of his sister's migration to Australia in 1999. 

23.     The applicant submitted that his actions were wrong but his motives understandable, as the latter were directed at completing his secondary education.  He claimed the amendment of his date of birth to 7 October 1960 would not benefit him. 

24.     The applicant relied upon Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410 in which case Mr Tang falsified his date of birth to gain entry into Australia, as younger migrants were perceived as being more employable and useful to Australia.

25.     Mr Gerkins submitted that Mr Goitom would still have been accepted for migration to Australia, still have been granted Australian citizenship and still have been permitted to sponsor his sister's migration to Australia if he had declared his date of birth as 7 October 1960.  Mr Gerkins argued that the Commonwealth had not suffered any prejudice as a result of the applicant’s falsification of personal details. 

26.     Again, relying on Tang where Senior Member Sassella said (at paragraph 24(i)):

…

(i)Section 61 of the FOI Act provides that in a tribunal matter the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.  This casts a burden on the respondent in these proceedings to satisfy the tribunal that it should not grant Mr Tang’s request in the exercise of its powers.

The applicant submitted that

·   the Department had not discharged the onus imposed by s 61 of the Act and

·   the applicant had met the requirements of s 52(6) of the Act; and

·   the applicant sought the exercise of the Tribunal’s discretion to amend his date of birth on all departmental documents to 7 October 1960.

The Respondent

27.     Ms Greaves submitted that the only items of evidence produced by the applicant to support his contention that his correct date of birth was 7 October 1960 were the Eritrean identification card (T10) and the Duplicated Certificate of the Ministry of Education (T11).  The identification card had been obtained following the applicant's application to the Eritrean Workers Union in Australia and relied solely on information contained in his application form.  Thus, the identification card was of no probative value to the Tribunal.  Ms Greaves submitted that the respondent doubted that the duplicate certificate from the Ministry of Education, Ethiopia was a copy of the original certificate, given the likelihood that the civil war in Ethiopia and Eritrea had resulted in the destruction of the original records.  The applicant had travelled to Eritrea in 1994/1995 to obtain this certificate and had made application to the Ethiopian Ministry of Education.  No evidence was provided as to the content of this application.

28.     In addition, Ms Greaves submitted that the evidence of the applicant, Asmelash Goitom and Abrhet Goitom that they and their siblings were born at three‑year intervals, and that the applicant had been born in 1960, did not tally with Alem’s year of birth, 1961.  Ms Greaves further submitted that the applicant had freely admitted the initial declaration of his date of birth as 7 October 1966 had been for the purpose of gain, namely the completion of his secondary education, and that the correction of his date of birth to 7 October 1960 could benefit him in terms of his eligibility for an old age pension and possibly access to his superannuation moneys. 

29. Ms Greaves submitted that despite the fact that the applicant had obtained his identification card in 1993 and the duplicate certificate in 1995, and had an opportunity to correct his date of birth when sponsoring his sister's migration to Australia, he had not made an application under s 50 of the Act until 2002.

30.     The respondent relied upon Re Mulder and Department of Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 410 with respect to the onus of proof.  Member Mowbray stated(at 419):

Section 61(1) of the FOI Act generally places an onus on an agency to justify a decision.  However, it is not good enough for an applicant to merely assert the document is wrong.  The applicant has to put some material before the Tribunal.  In Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997) Senior Member Hotop, as he then was, said at [42]

“Although the general rule is that, in proceedings before the Tribunal, neither party bears a formal onus of proof, special provision in that regard is made by s.61 of the FOI Act in relation to Tribunal proceedings under that Act.  Section 61(1) provides that, in such proceedings, the agency to which the relevant request was made has the onus of establishing that a decision given in respect of that request was justified or that the Tribunal should give a decision adverse to the applicant.…

The respondent submitted that the material produced by the applicant was of no probative value. 

APPLICATION OF THE LEGISLATION TO THE FACTS BEFORE TRIBUNAL

31.     Mr Goitom had said he altered his date of birth solely for the purpose of completing his secondary education in Egypt.  While his motive is readily understandable, the admitted falsification of his date of birth in his official Somali passport did benefit him in allowing him to complete his education.

32.     Mr Goitom delayed his application for correction of his date of birth for 15 years after his arrival in Australia, and for 7 years after obtaining supporting evidence, for reasons outlined in his evidence.  But he did proceed in 2002 when, on his own admission, he realised that failure to correct his date of birth would disadvantage him in terms of eligibility for an old age pension and access to his superannuation moneys. 

33.     In Re Cox, Deputy President Todd listed the relevant factors to be considered by the Tribunal in exercising its discretion to amend as (at 501):

4.           …The "veracity", or otherwise, of all aspects of the claim…

(a)the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person;

(b)whether the record serves a continuing purpose;

(c) whether retention of the record in unamended form may serve a historic purpose;

(d)whether the record is dated;

(e)whether amendment is being sought as a de facto means of reviewing another administrative decision;

(f)the extent to which access to the record is restricted;

(g)whether creation of the record or any of its contents was induced by malice.

(h)whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute. [electronically retrieved]

34.     In this matter Mr Goitom seeks to correct a fact – his date of birth - in records which serve a continuing purpose.  The other factors listed by Deputy President Todd either do not apply or are not of immediate concern.  With the passage of time, factor 4(e) will become relevant with respect to any application for Centrelink benefits.

35.     The applicant has established a prima facie case by presentation of his Eritrean identity card and the duplicate certificate from the Ethiopian Department of Education to the effect that he completed Year 8 in Eritrea in 1980, at the age of 20.  According to Mulder, in taking into account s 61(1) of the Act, the onus of proof rests with the respondent to satisfy the Tribunal that its decision should be adverse to the applicant.  The Tribunal finds that the identification card was issued following Mr Goitom's application to the Eritrean Workers Union, wherein he declared his date of birth to be 7 October 1960, and is therefore of no probative value.

36.     The duplicated certificate from the Ethiopian Ministry of Education was also obtained by Mr Goitom’s application, in person, to the Ministry.  No evidence has been produced that the original certificate exists, nor what information the applicant supplied in order to obtain the certificate.  The Tribunal acknowledges that many countries do not have government systems in place to register births and many rely on the date of birth advised when an individual commences school.  The duplicated certificate provided does not refer to enrolment in school, which Mr Goitom claimed was in 1968, when he was 8 years old, but to his completion of schooling in Eritrea at Year 8 when he claimed to be 20 years old.  Without confirmation of the existence of the original certificate by the Ethiopian Ministry of Education or the Mahdere Berkane School records, the Tribunal cannot accept the authenticity of the duplicated certificate.

37.     The Tribunal finds that the evidence presented by the applicant to support his claim that the personal data, namely his date of birth, contained in departmental records is incorrect; is not of sufficient probative value. 

DECISION

38.     The decision under review is affirmed.

I certify that the thirty‑eight [38 preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas
            Clerk

Date of Hearing:  17 January 2005

Date of Decision:  11 March 2005
Solicitor for the applicant:            Mr M. Gerkins, FCG Legal Pty Ltd

Solicitor for the respondent:        Ms J. Greaves, Blake Dawson Waldron