HFNB; Secretary, Department of Immigration and Border Protection and (Freedom of information)
[2017] AATA 870
•9 June 2017
HFNB; Secretary, Department of Immigration and Border Protection and (Freedom of information) [2017] AATA 870 (9 June 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number:2016/5623
Re:Secretary, Department of Immigration and Border Protection
APPLICANT
HFNBAnd
RESPONDENT
DECISION
Tribunal:Dr Gordon Hughes, Member
Date:9 June 2017
Place:Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that the Respondent's date of birth is 31 December 1994, as previously recorded by the Department of Immigration and Border Protection.
...........................[sgd].............................................
Dr Gordon Hughes, Member
FREEDOM OF INFORMATION – Establishing date of birth of irregular maritime arrival – absence of credible documentary or other evidence from Respondent – assessment of Departmental interviewers preferred – proposed date of birth must be ‘correct’ and not ‘closer to correct’ or ‘more likely to be correct’ – decision under review set aside and substituted
LEGISLATION
Freedom of Information Act 1982 ss 48, 50, 57A, 61
Migration Act 1958 s 487Z(1)CASES
‘JP’ and Department of Immigration and Border Protection [2016] AlCmr 65
‘K’ and Department of Immigration and Citizenship [2012] AICmr 20
Re Prinn and Department of Defence (2016) 152 ALD 162
SECONDARY MATERIALS
Australian Information Commissioner’s Guidelines issued under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
Dr Gordon Hughes, Member
9 June 2017
BACKGROUND
The Applicant sought a review of a decision by the Acting Australian Information Commissioner (AIC) dated 21 September 2016 to amend the records of the Department of Immigration and Border Protection in relation to the Respondent's date of birth.
The Respondent had arrived in Australia on 24 June 2013. In order to have been classifiable as a minor at that time, his birthday would have to be later than 23 June 1995. The Applicant had allocated him a birthdate of 31 December 1994. Following an application by the Respondent to the AIC, the date was amended to 24 April 1996. The Applicant then lodged an application for review of that decision with the Tribunal pursuant to s 57A of the Freedom of Information Act 1982 (the Act).
DISCUSSION
When the Respondent arrived in Australia on 24 June 2013 as an irregular maritime arrival, his date of birth was notionally recorded as 31 December 1995, pending an Irregular Maritime Arrival & Induction Interview.
The Respondent's Irregular Maritime Arrival & Induction Interview was conducted on 12 August 2013. The Respondent gave his age as 17 years, stating that he had been told this by his mother 2 weeks before departing.
The two interviewing officers, however, considered the Respondent to be evasive and inconsistent in his responses and assessed him to be over 18 years of age, allocating 31 December 1994 as his birth date.
On 7 November 2014, the Respondent made a request to the Department under s 48 of the Act, requesting that his date of birth be amended from 31 December 1994 to 24 April 1996. Section 50 of the Act relevantly provides that the Department can amend a record of personal information where the information is “incorrect” and to make it “correct”. On 2 December 2014, an authorised officer of the Department refused the request on the basis that the records of the Department were not incomplete, incorrect, out of date or misleading. The Respondent sought an internal review by the Applicant of the decision and on 13 February 2015 the Applicant refused the request for the amendment.
On 16 April 2015, the Respondent applied to the AIC for a review of the Department's record of his date of birth. The AIC concluded that the date of birth contended by the Respondent was "more likely to be closer to the correct date" than the date allocated by the Applicant, and ordered that an amendment be made (see ‘JP’ and Department of Immigration and Border Protection [2016] AlCmr 65).
Pursuant to section 57A of the Act, the Applicant lodged an application for review of the AIC’s decision with the Tribunal. Section 61 of the Act requires that, on review to the Tribunal, the Applicant has the onus of establishing that the AIC’s decision was not justified or that the Tribunal should make a decision adverse to the Respondent in relation to the request for amendment of records.
The Respondent, who had been born in Afghanistan before his family emigrated to Pakistan when he was about two years of age, told the Tribunal that the recording of birth dates was not part of his cultural upbringing. Birthdays were not celebrated in his family. It is accordingly necessary to draw deductions from any available written material together with any professional assessment arising out of the Applicant's interview and assessment processes.
The Applicant relied upon the fact that its two assessors had found the Respondent to be deliberately evasive and deliberately withholding information in an attempt to conceal his true age.
The record of the Respondent's Irregular Maritime Arrival and Induction Interview contains a notation on his record: "The client I think was older than his [stated] age, I think he is an adult, during the interview, he was trying to act as a child, and it looks very awkward".
The interview was conducted by two interviewers, each of whom produced separate evaluations.
The first interviewer stated that the Respondent's facial appearance was "largely inconsistent with a person of his claimed age". She thought the Respondent "appeared evasive and [to be] deliberately withholding information". The Respondent's responses to questions about his family had, in the opinion of this interviewer, been disingenuous, inconsistent, and overall were suggestive that the Respondent had most likely been living independently of his family by the time he left Pakistan.
The second interviewer emphasised the Respondent's "apparent familiarity in conversing with adults", his inconsistency in providing answers regarding his age or the age of his siblings, his apparent unawareness of his age when he finished school or the year in which he finished school, and his overall display of independence. This interviewer came to the conclusion, like the first interviewer, that the Respondent's behaviour was consistent with that of a person over the age of 18 years.
The Respondent told the Tribunal, in response to these observations, that any apparent evasiveness was attributable to his unfamiliarity with the interview process; any inconsistencies would be attributable to his nervousness at the interview and perhaps to inaccurate translation by the interpreter assisting. He said his uncertainty about the year he finished school was attributable to other traumas he was experiencing at the time, particularly the fact that his father had been injured in a bombing around the same time.
It was clear to the Tribunal that the ascertainment of the Respondent's age is necessarily a speculative and imprecise exercise. It follows that the opinions formed by the interviewers cannot be regarded as definitive. At the same time, the professional expertise of the interviewers must be acknowledged and hence their observations and conclusion must be given some weight.
It is understandable, given the Respondent's background, that reliable documentary evidence of the Respondent's date of birth would be difficult to find.
Of potential significance in this regard was the existence of a taskera, recording elements of the Respondent's family background. The Respondent told the Tribunal that his father had returned, at some personal risk, to Afghanistan in order to retrieve the taskera as it recorded his year of birth. A translation of the hand-written taskera showed the respondent's year of birth as 1996.
The Applicant contended that the taskera was bogus, or had at least been tampered with. In September 2016 the original taskera document had been seized by the Department of Immigration and Border Protection under section 487Z(1) of the Migration Act 1958 (Migration Act) on the basis that it had been assessed to be a "bogus document".
The fact that the taskera was seized under section 487Z of the Migration Act is not proof in itself that the document is in fact bogus. The Respondent contended it was genuine, at least according to his father. Regardless, the Tribunal is unable to afford significant weight to this document. It is not a formal, contemporaneous document; it is based on self-reporting; and the English translation is not literal but rather a pre-formatted summary of what purports to be contained in the document.
The Respondent told the Tribunal that his year of birth had also been recorded in the back of the family's Koran. When asked by the Applicant why a copy of the relevant page had not been produced, the Respondent replied that he had not thought this would be helpful evidence. In the absence of the relevant page, I cannot give this any weight.
The Tribunal considered a letter issued by a Pakistani public official who "certified" in relation to the Respondent that "according to his documents his date of birth [is] 24-04-1996".
The Respondent told the Tribunal he did not know the official – he was a contact of his father's. The Tribunal gives no weight to this letter, as it is unclear what "documents" it is based upon. In all probability, it is based on the taskera. The Respondent acknowledged to the Tribunal that, at the very least, the date "24 April" was a random allocation.
The Tribunal also considered letters from a teacher and a youth worker in Australia who both stated that the Respondent’s level of emotional and psychological development indicated he was 17 or 18 years old. The Tribunal gives no weight to these documents for much the same reasons as the AIC in its decision, namely, that there are difficulties assigning a precise biological age purely on the basis of emotional and psychological development, particularly where the authors do not have any apparent professional expertise in predicting the age of a person.
The Applicant contended that it was significant that the Respondent had failed to produce other records independently verifying his age, such as school records.
The Applicant provided evidence that school records attested by school headmasters or principals are often used, and accepted, in lieu of birth certificates by refugees in Pakistan. The Respondent was asked why he had not produced school records which would at least have confirmed the date he had finished his schooling and which might have referenced his age. The Respondent replied that no school records would exist. They might have existed if he had been attending school as a regular student but his situation was different because his parents had paid for him to attend.
The Respondent was reminded that in 2007, the Pakistan government required all Afghanis living in Pakistan to be registered, or else face deportation. He was asked whether he could produce any records of his family's registration. The Respondent replied that he did not think his family had registered. When asked whether this appeared somewhat incongruous, given the risks associated with not registering, the Respondent replied "I don't know why they didn't register… We didn't discuss such things".
The Tribunal considers this gap in the respondent's history to be of potential significance. The Applicant provided evidence that Afghans who registered with the Pakistan National Database and Registration Authority between October 2006 and February 2007, including children over 5 years of age, were issued with proof of Registration Cards. The cards were essential for accessing government services.
SHOULD THE RECORDS OF THE DEPARTMENT BE AMENDED?
For the reasons outlined below, the Tribunal concludes that the Applicant has discharged its onus to establish that the decision of the AIC was not justified and that the records of the Department should not be amended.
Is the Respondent’s date of birth in the record of information “incorrect”?
The Applicant conceded before both the AIC and the Tribunal that the departmental record is likely to be incorrect, as the date recorded is unlikely to be the Respondent’s “actual date of birth”. The Tribunal accordingly finds that the date as currently recorded is incorrect. This should not be considered an indictment on the assessment process; the process appears to have been conducted professionally and the assessors reached their conclusions following an in-depth assessment. Nonetheless, the age determination process is an imprecise one, particularly in circumstances where there is a lack of useful supporting documents from the person being assessed.
Would the proposed amendment make the record of information “correct”?
Once it is established that the record of information is incorrect, the next task is to determine whether the proposed amendment would make the record correct. In the AIC’s decision, the AIC found that 24 April 1996 was the correct date of birth of the Respondent as it was “more likely to be closer to the correct date than 31 December 1994” and that no other date “was more likely to be correct”. This is an approach adopted from the decision of the former Freedom of Information Commissioner in ‘K’ and Department of Immigration and Citizenship [2012] AICmr 20, who stated at [39] that:
“… When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied than [sic] 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”
I note that this approach is also replicated in the Freedom of Information Guidelines (the Guidelines) at [7.45] (citing ‘K’ and Department of Immigration and Citizenship). The Guidelines are not legislative instruments but regard must be had to them in performing a function or exercising a power under the Act (s 93A of the Act). It is clear that Parliament’s intent was for decision-makers (be it the AIC or the Tribunal) to consider the Guidelines in performing a function or exercising a power, but it was not their intent that decision-makers be bound to apply them. Importantly, whilst the Guidelines must be made in accordance with the power conferred by s 93A of the Act, as well as consistently with the Act as a whole, they cannot be used for the interpretation of the Act (Re Prinn and Department of Defence (2016) 152 ALD 162 at 175-178).
Respectfully, the approach to the word correct in the case of ‘K’ and Department of Immigration and Citizenship and within the Guidelines is not justified by the nature of the power conferred by the Act. The correct approach is not whether the date of birth advanced by the Respondent is likely to be closer to the correct date than that currently recorded and whether no other date is more likely to be correct. Rather, the correct approach is, as contended by the Applicant, taking into account all the relevant facts, whether the date of birth raised by the Respondent is the correct date of birth. This is clear from the wording in the Act, which states that the amendment may be made to make the information correct, as opposed to “closer to correct” or “more likely to be correct”.
On the basis of the evidence before it, the Tribunal concludes that the Respondent's birth date should remain recorded as 31 December 1994 and that changing the date in the record of information to 24 April 1996 would not make the record correct. For the reasons outlined earlier in this decision, the Tribunal has allocated no weight to the letter’s from the Pakistani public official, the Respondent’s teacher and youth worker or the unproduced page of the family Koran purportedly containing the Respondent’s year of birth. Very little weight has also been allocated to the information contained within the Respondent’s taskera, noting that it is not a formal, contemporaneous document and that there are concerns about the translation of the taskera. Furthermore, the Tribunal is concerned that the Respondent does not appear to have undertaken a number of obvious enquiries which might, or might not, have produced more helpful documentary evidence (such as a registration card or school records). On the basis of the evidence before the Tribunal, I cannot find that 24 April 1996 is the Respondent’s correct date of birth.
DETERMINATION
For the reasons set out above, the Tribunal concludes that the decision under review should be set aside, and substitutes a decision that the Respondent's birth date in the Department's records should be recorded as 31 December 1994.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member
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Associate
Dated: 9 June 2017
Date of hearing: 27 April 2017 Advocate for the Applicant: Ms Elena Arduca Solicitors for the Applicant: Australian Government Solicitor Respondent: In person
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