John Grass and Secretary, Department of Immigration and Border Protection
[2014] AATA 751
•17 October 2014
[2014] AATA 751
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2249; 2014/3753
Re
John Grass
APPLICANT
And
Secretary, Department of Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 17 October 2014 Place Sydney The reviewable decisions made in relation to Docs. E 3(2), GGG, JJJ, CC, 36(1) and 36A to 36P are set aside and remitted to the Secretary, under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), to determine Mr Grass’s deemed application for the annotation of those documents.
The balance of each reviewable decision is affirmed.
....................[SGD]....................................................
Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION — Amendments to personal records — Whether information is “personal information” — Whether information is based on mistake of fact — Whether the author of any opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion — Whether the information is incomplete, incorrect, out of date or misleading — Whether power to amend should be exercised — Power to annotate
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 42B
Australian Citizenship Act 2007 (Cth) – ss 20
Freedom of Information Act 1982 (Cth) – ss 48; 50; 51; 54W(b); 58(AA)(1); 58(AA)(2); 61(1)(b);
CASES
Grass v Minister for Immigration and Border Protection [2014] FCA 393
Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489
Searle and Secretary, Department of Family and Community Services [2000] AATA 371
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
Senior Member A K Britton
17 October 2014
Mr John Grass challenges two decisions made by the Secretary of the Department of Immigration and Border Protection (the Department), to refuse his request for amendments to be made to a series of documents held by the Department. He claims those documents contain personal information about him and/or his wife, Mrs Corazon Grass, that is “incomplete, incorrect, out-of-date or misleading”. Made under s 48 of the Freedom of Information Act 1982 (Cth) (the FOI Act), Mr Grass’s requests primarily relate to information about his date of birth and marital status.
Mr Grass applied to the Australian Information Commissioner for review of both decisions, namely the decision to refuse his request to amend records held by the Department, deemed to have been made by the Secretary on 7 March 2014, and the subsequent refusal decision made on 2 June 2014 (the reviewable decisions). The Information Commissioner decided to exercise the power under s 54W(b) of the FOI Act not to review either reviewable decision being satisfied that “the interests of the administration of the Act make it desirable that the reviewable decision be reviewed by the Tribunal”.
Mr Grass now seeks review by the Administrative Appeals Tribunal (the AAT) of the reviewable decisions. The parties agree the AAT has power to review each decision. The Secretary agrees that Mr Grass has authority to act on behalf of his wife in making the initiating requests and the application for review by the AAT.
Scope of application for amendment of record
The Secretary applied to the AAT for orders dismissing Mr Grass’s applications for review on the grounds that they were “frivolous and vexatious” (s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In determining that application — which I refused — it became apparent that Mr Grass’s initiating requests to the Department did not make clear the class of documents he sought to have amended and the parts of those documents he contended contained incomplete, incorrect, out-of-date or misleading personal information about himself and/or his wife.
In answer to directions made by me, Mr Grass identified 21 documents (the subject documents) and the parts of those documents he contends contain incomplete, incorrect, out-of-date or misleading personal information (the offending information).
In these reasons I adopt the numbering of the subject documents used by Mr Grass. Where any document contains more than one piece of offending information, I will refer to each by number. For example “Doc. JJJ(2)” refers to the second piece of offending information contained in document JJJ (a Notice of Intention to consider cancellation of Mrs Grass’ citizenship approval application dated 11 May 2010). Annexure A to these Reasons lists each piece of offending information and my decision in relation to that information. Where the decision is made to remit to the Secretary, the personal information the subject of that decision is indicated in bold.
Background to requests made by Mr Grass
To understand the submissions made by the parties, it is necessary to outline the history of dealings between Mr and Mrs Grass and the Department.
The Department’s database, the Integrated Current Services Environment (ICSE) currently records Mrs Grass’s date of birth as being [xxx] 1966. This accords with the date Mrs Grass claims to be correct. [In these reasons to avoid disclosing unnecessary personal information I will refer to Mrs Grass’s actual and alleged date of birth, by year only.] A passport used by Mrs Grass to enter Australia in 1998, records her date of birth as [xxx] 1954. Multiple records held by the Department record that date as Mrs Grass’s date of birth.
The date of birth issue is relevant to Mrs Grass’s marital status. If her date of birth is [xxx] 1954, her marriage to Mr Grass was unlawful because at the time of that marriage she was married to another person. If, on the other hand, as Mrs Grass contends, she was born in 1966, she was a minor at the time of her first marriage and apparently that marriage is not recognised under Philippine (and Australian) law.
The date of birth issue has been relevant to a number of decisions made by the Department and other bodies.
In 2006 a delegate of the Minister decided to cancel Mrs Grass’s spouse visa on the ground that in her application for that visa she provided false and misleading information about her date of birth and marital status. On review, the Migration Review Tribunal (MRT) agreed with the delegate’s finding that Mrs Grass’s correct date of birth was [xxx] 1954 but set aside the decision to cancel Mrs Grass’s spouse visa on other grounds.
In May 2009, a delegate of the Minster approved Mrs Grass’s application for Australian citizenship by conferral. After Mrs Grass was notified of that decision but before she made a pledge of commitment — a pre-condition to a person becoming an Australian citizen (s 20 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) — a decision was made by another delegate of the Minister to cancel the approval, on the ground that Mrs Grass was not of good character (the first cancellation decision). Among other things, the decision-maker found that Mrs Grass’s date of birth was [xxx] 1954 and that she had provided false information about her date of birth and marital status in her application for citizenship.
In December 2011, Mr Grass lodged a complaint with the Office of the Commonwealth Ombudsman about the conduct of Departmental officers involved in the cancellation decision. An investigation conducted by the Department found that Mrs Grass’s citizenship ceremony had been improperly delayed.
In November 2012, Mrs Grass applied to the Federal Magistrates Court of Australia (FMC) for review of the first cancellation decision, asserting among other things, that the decision-maker had failed to afford her natural justice. On 13 February 2013, the FMC made orders setting aside the first cancellation decision. On the day those orders came into effect, 8 April 2013, a delegate of the Minister made a further decision to cancel the approval of Mrs Grass’s application for Australian citizenship (the second cancellation decision) on the basis that she was not of good character giving the following reasons:
you have previously been an unlawful in Australia for a period of approximately 2 years and during that time will [sic] worked unlawful [sic] in Australia.
you have demonstrated a pattern of false and deliberate misrepresentation concerning information relating to your identity.
you have provided false information in numerous contexts, including to the Australian Tax Office, the NSW Registry of Births, Deaths and Marriages, to your employer(s) in Australia, to the United Kingdom immigration authorities, and in your dealing with the Department.
you are in a bigamous marriage in breach of the Marriage Act 1961 (Cth).
Mrs Grass unsuccessfully applied to the Federal Court to have the second cancellation decision set aside (Grass v Minister for Immigration and Border Protection [2014] FCA 393).
In 2005, and again in 2008, Mr Grass made requests for documents under the FOI Act apparently for the purpose of establishing that he and his wife had notified the Department about the alleged anomalies in the documentation concerning Mrs Grass’s date of birth and marital status. In 2008 he applied under the FOI Act for amendment of the records held by the Department concerning his wife’s date of birth and marital status. A copy of the FOI decision was not provided in these proceedings but the parties agree that the decision-maker found that Mrs Grass’s claimed date of birth was in fact her correct date of birth. I understand that as a consequence the Department’s ICSE record was amended to record Mrs Grass’s date of birth as being [xxx] 1966.
Statutory framework
Section 48 of the FOI Act gives a person a right to apply to an agency for amendment or annotation of personal records and provides:
Application for amendment or annotation of personal records
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.
The Act defines “personal information” to mean:
… information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a)whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.
Section 50 confers on a decision-maker the power to amend records on application:
Amendment of records
1Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a)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; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
2The agency or Minister may make the amendment:
(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b)by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
3To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
The Tribunal’s power to amend a record that relates to a record of an opinion, is subject to s 58(AA) of the FOI Act:
Powers of Tribunal--limitation on amending records
1The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following:
(a)the opinion was based on a mistake of fact;
(b)the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
2The Tribunal must not, in a decision on an application under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following:
(a)the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;
…
The Department bears the onus of establishing that the decision to refuse Mr Grass’s request for amendment of records is justified (s 61(1)(b) of the FOI Act).
Pre-conditions to the exercise of the power to amend
Before exercising the power to amend the subject records, I must be satisfied that:
(i)the information the subject of Mr Grass’s application for amendment is “personal information” about Mr Grass and/or his wife, and
(ii)if so, that information is incomplete, incorrect, out of date or misleading, and, if an opinion, the opinion was:
(a) based on a mistake of fact and/or
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion, and
(iii)that information has been used, is being used or is available for use by the Department for an administrative purpose.
The Secretary concedes that all of the offending information satisfies the third criteria.
Mrs Grass’s date of birth
Ms Hooper for the Secretary advises that the Department is currently undertaking a review about Mrs Grass’s correct date of birth but for the purpose of these proceedings, as claimed, Mrs Grass’s correct date of birth is [xxx] 1966. Ms Hooper also advises that the Department’s database records Mrs Grass’s date of birth as [xxx] 1966 and her marital status as married.
Is the offending information “personal information” about Mr Grass and/or his wife?
The power conferred by s 50 of the FOI Act to amend “a record of personal information” can only be exercised if that information is “personal information about that person [the person who made the application for amendment]”. While broadly defined — “information or an opinion about an identified individual …” — the information must nonetheless be about the relevant individual. It is not enough that the information be “related to” or “in respect of” that person.
Some of the offending information in my opinion could not be said to constitute personal information about Mr or Mrs Grass. The following extract taken from an email exchange between the Department and the Office of the Commonwealth Ombudsman, is but one example (Doc. VV(1)):
As previously advised, at the time Ms Grass’ case was decided in June 2009, the officer failed to obtain additional information relevant to the determination of the circumstances of the case, which was an oversight on the officer’s part
That statement contains no personal information about Mrs Grass. It contains an expression of opinion about the manner in which an officer of the Department handled Mrs Grass’s citizenship application. While Mrs Grass is mentioned in that statement of opinion, the opinion is not about Mrs Grass.
For broadly the same reasons many other pieces of offending material, are not, or do not contain, “personal information” about Mr and/or Mrs Grass. Annexure A lists the offending material that in my opinion is not or does not contain “personal information” about Mr and/or Mrs Grass.
Was the offending opinion based on a mistake of fact or was the author of the opinion biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion?
Section 58(AA)(1) provides that the power to amend a record that relates to an opinion about Mr and/or Mrs Grass, can only be exercised if the opinion:
is based on a mistake of fact and/or
the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion
A large number of records the subject of Mr Grass’s application contain opinions expressed by Departmental officers. They cover a range of topics and include statements to the effect that:
(i)an FOI decision-maker carried out an inadequate investigation/failed to take into account all relevant considerations in making an FOI decision (for example, Doc. A3(1); Doc. FF2(2), Doc. VV (1), (2) & (3))
(ii)a Citizenship Act decision-maker carried out an inadequate investigation, prior to approving Mrs Grass’s application for citizenship (for example, Doc. A3(2); Doc. A4(2))
(iii)Mr Grass was aggressive at a citizenship interview (for example, Doc. A3(3)).
None of the offending opinions relating to the first two categories contain personal information about Mr and/or Mrs Grass. Therefore the power to amend those records cannot be exercised. Nonetheless as both parties made detailed submissions about the application of s 58(AA)(1) of the FOI Act, I address those submissions below.
Statements relating to the FOI decision
As noted, in 2008 an FOI decision-maker decided to exercise the power to amend records held by the Department concerning Mrs Grass’s date of birth and marital status. The subject documents reveal that a number of Departmental officers disagreed with that decision and the decision-making process. The statements about which Mr Grass complains include:
(i) No consideration was given to the issues around her [Mrs Grass’s] identity at the time [of] the FOI application. (Doc. A3(2))
(ii) I note that the original FOI decision indicated that it only considered two departmental files … when in fact there were also the following other files available which contained clear evidence of Mrs Grass’ true date of birth. (Doc. FF2 (3))
(iii) Even though the FOI section believed that there was enough evidence at the time to approve your request to amend your date of birth, they did not in fact take all Department files and therefore some information into consideration when making that decision. They also did not investigate all matters regarding your identity comprehensively. (Doc. JJJ1(1))
Mr Grass contends that these opinions are “incorrect”. He asserts that the FOI decision-maker conducted a careful review of all available material and reached the correct decision.
Whether the decision made by the FOI decision-maker is the correct or best decision, is irrelevant. The issue I must decide is whether the offending opinions fall within paragraphs (a) or (b) of s 58AA(1) of the FOI Act. While the Department bears the onus of establishing that the decision to refuse Mr Grass’s application for an amendment is justified, from a practical point of view Mr Grass nonetheless bears an initial or preliminary burden of establishing that the offending opinions were based on a mistake of fact or the author was biased or acting improperly (see for example, Searle and Secretary, Department of Family and Community Services [2000] AATA 371; [11] – [12]).
There is conflicting “evidence” about Mrs Grass’s date of birth. The FOI decision-maker apparently assessed that evidence and concluded that it supported a finding that Mrs Grass’s date of birth was [xxx] 1966. Other officers reached a different conclusion. Mr Grass contends that the opinions of those officers were based on a “mistake of fact”, namely that his wife’s date of birth was [xxx] 1954. With respect this argument is misconceived. A conclusion drawn, or finding made, about conflicting evidence, is not a “mistake of fact”. Where there is conflicting evidence, the decision-maker is required to critically evaluate and weigh up that evidence and make a finding of fact. It does not follow that where decision-makers reach different findings, their opinions are based on a mistake of fact.
In addition, Mr Grass made a range of allegations about those Departmental officers who expressed opinions critical of the decision made by the FOI decision-maker and/or the decision-making process she employed. He has not pointed to any material which might support a finding that those officers were biased, unqualified or acted improperly in conducting the factual inquiries that led to the formation of those opinions.
Statements made about the citizenship approval decision
In May 2009 Mrs Grass’s application for Australian citizenship by conferral was approved by a delegate of the Minister. The offending material contains a number of statements of opinion, critical of that decision and/or the manner it was made. They include:
If the officer had requested files and investigated the matter more thoroughly, the officer would have also seen that the FOI section who changed the Department’s systems to reflect Ms Grass’ date of birth as [xxx] 1966 in 2008 failed to take all of Ms Grass’ files into consideration … and also failed to verify through the Australian Embassy in Manila further identity details that would have again … proven Ms Grass’ true identity” [Doc. VV(3)]
The same considerations apply as those discussed above. The issue is not whether the delegate who approved Mrs Grass’s application for citizenship made the correct or best decision or whether the officers who were critical of that decision were mistaken in their opinions. The issue is whether the opinions about which Mr Grass complains were based on a mistake of fact or the officers who expressed those opinions were biased, unqualified to form an opinion or acted improperly in conducting the factual inquiries that led to the formation of their respective opinions. On the available evidence I am not satisfied that the offending opinions fall within paragraphs (a) or (b) of s 58AA(1) of the FOI Act.
Statements about Mr Grass’s conduct
Document A3 is a Ministerial background paper prepared by an Assistant Secretary of the Department. The paper contains a number of negative comments about Mr Grass’s dealings with the Department:
This interview (relating to the cancellation of her citizenship) was terminated when Ms Grass’ spouse became aggressive during the interview and would not allow his wife to speak [Doc. A3(3)]
…
Mr Grass’ dealings with the Department have, on numerous occasions, been of a somewhat aggressive nature. This coupled with the fact that he showed a great reluctance to allow his wife to speak for herself did make the cancellation process somewhat fraught [Doc. A3(4)].
The offending statements are expressions of opinion about the manner in which Mr Grass conducted himself during an interview and in his dealings with the Department. Mr Grass contends that these statements are inaccurate and asserts he has never been aggressive in his dealings with the Department.
An assessment about another person’s conduct is inherently subjective. Minds can and frequently do, differ about the characterisation of a person’s conduct. What one person might characterise as aggressive conduct, another might characterise as determined or persistent.
The available material does not suggest that the opinion expressed about Mr Grass’s conduct during the interview was based on a mistake of fact; that is, that the interview was not terminated, or that the interviewing officer did not form the opinion that Mr Grass became aggressive during the course of the interview or did not allow his wife to speak. Nor does the available material suggest that there was no basis for the opinion expressed in the paper that some officers within the Department held the opinion that, at times, Mr Grass’s dealings with the Department were aggressive.
Mr Grass did not point to any material that might suggest that the officers who held the opinions referred to by the Assistant Secretary, or the Assistant Secretary himself, were biased, unqualified to form an opinion, or acted improperly in conducting the factual inquiries that led to the formation of their respective opinions.
Conclusion: I have examined each of the opinions about which Mr Grass complains. I am not satisfied that any are caught by paragraphs (a) or (b) of s 58(AA)(1).
Is the offending information incomplete, incorrect, out of date or misleading?
In deciding whether the offending information is incomplete, incorrect, out of date or misleading, I have adopted the meanings of those words contained at [7.10] in the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act. .
(i) The MRT also found that the applicant’s true date of birth is [xxx] 1954 (Doc. A4 (1))
Doc. A4(1) is a statement contained in an (undated) briefing note apparently prepared for the Minister. It would appear that Docs. A3 and A4 form part of the one document.
It is uncontroversial that the Migration Review Tribunal (MRT) found Mrs Grass’s “true date of birth” to be [xxx] 1954. Mr Grass contends that this statement is incorrect, reasoning that the MRT erred in making that finding. This argument is misconceived. The issue is not whether the finding made by the MRT was “correct” or one that could reasonably be drawn from the available evidence, but whether the statement correctly records the finding made by the MRT.
I understand Mr Grass to also contend that the statement is out of date because it is inconsistent with the FOI decision. This argument is also misconceived. That a decision-maker reaches a different finding to an earlier decision-maker, does not render the earlier decision “out of date”.
Doc. A4(1) is not incomplete, incorrect, out of date or misleading. For broadly the same reasons, nor are Docs. FF2(1), DDD(1) and the first sentence of Doc. DDD(2).
(ii) “On this basis, the department will now review the factual accuracy of its record of your wife’s personal information held by the department” (EE2)
This statement is contained in a letter to Mr Grass from the Department dated 5 December 2013, in answer to his concerns about the propriety of the decision to cancel the approval of his wife’s citizenship application. While the statement refers to, it does not contain, personal information about Mrs Grass.
I understand Mr Grass to contend that the statement is misleading and out of date because the foreshadowed review has not been undertaken. Even if correct, that does not make the offending statement out of date or misleading. The statement must be read in its context: it is a statement of intention. There is no evidence that when that statement was made the Department did not intend to undertake the foreshadowed review. Nor is the statement out of date because 10 months after it was made, the review (apparently) has not been completed. I am not persuaded that the statement is incomplete, incorrect, out of date or misleading.
(iii) “… based on the person not being of good character for Mrs Corazon GRASS b [xxx] 1954” (Doc. E 3(2))
Contained in an internal email sent by an officer of the Department, this statement contains a factual assertion about Mrs Grass’s date of birth. The Secretary agrees that the asserted date of birth is incorrect but contends that the offending information must be read in context. The Secretary contends that the email is a correct factual record of an historical event. The Secretary points out that the document is not, and does not purport to be, an “active record” of Mrs Grass’s date of birth. I understand the Secretary’s use of the term “active record” to mean a record that is currently used by the Department for administrative purposes.
I do not accept the proposition implicit in the Secretary’s submission, that the power to amend is restricted to active records. The issue is not whether the document the subject of the amendment application is authentic or correctly records an historic event. Providing the personal information contained in that record is incomplete, incorrect, out of date or misleading, and has been used, is being used or is available for use by the agency for an administrative purpose, the power to amend can be exercised. (See s 48(b) of the FOI Act).
The email contains incorrect personal information about Mrs Grass. That information is incorrect. The power to amend the record of that information can be exercised. I will return to consider whether that power should be exercised.
For broadly the same reasons, the reference to Mrs Grass’s date of birth being [xxx] 1954 contained in the notice of intention to cancel her citizenship application — (Doc. JJJ) and the internal Department email of 17 March 2010 (Doc. CC) —contains personal information about Mrs Grass that is incorrect.
(iv) Reference to Mrs Grass’s date of birth in file cover sheets
Documents 36A to 36P consist of 16 file cover sheets. Each record Mrs Grass’s date of birth being [xxx] 1954. The Secretary contends that the documents are records of historical data based on information provided at the time. Even if accepted that the offending file cover sheets are historical records, they nonetheless contain personal information about Mrs Grass that is incorrect. The power to amend the record of that information can therefore be exercised.
(v) Purported record of interview with Mrs Grass (Doc. 36)
The Secretary contends that this document is a record of an interview conducted with Mrs Grass while she was in immigration detention in 2002 and contains information provided by Mrs Grass. That is not apparent from the face of the document. The document appears to be a written request issued by an officer of the Department to the manager of Villawood Detention, to hold and detain Mrs Grass.
Listed under the heading “Detainee’s details”, the record contains personal information about Mrs Grass. Mr Grass complains about the references to Mrs Grass’s date of birth as [xxx] 1954 and her being the partner of a third party.
Both parties made unsupported submissions about whether, at the relevant time, Mrs Grass was the partner of the person named in the record. Ms Hooper asserted that in the course of the interview, Mrs Grass told Departmental officers that she was the partner of that person and ultimately left Australia with that person on the same flight. Mr Grass disputes that claim. Absent some evidence I am unable to make a finding about the correctness of otherwise of that record (Doc. 36(2)).
Doc. 36(1) contains personal information about Mrs Grass which is incorrect, namely Mrs Grass’s date of birth. It follows that the power to amend the record of that information can be exercised.
(vi) Reference to information received from “Manila” (Doc. H19)
Read in context it is clear that Doc. H19 is a screenshot containing information received from “Manila” about Mrs Grass. It is apparently an accurate statement of the information received. I am not satisfied that that information is incomplete, incorrect, out of date or misleading.
Can the power to amend be exercised in relation to the decision made by the delegate to refuse Mrs Grass’s application for citizenship?
Mr Grass applies for numerous amendments to be made to the cancellation decision made on 5 July 2010 (Doc. KKK3). The Tribunal does not have the power to amend that document because it is a record of a decision made under the Citizenship Act (s 58AA(2)).
Should the power to amend be exercised?
Having decided the power to amend conferred by s 48 of the FOI Act can be exercised in respect of Docs. E 3(2), GGG, JJJ, CC, 36(1) and 36A to 36P (the relevant records), it is necessary to decide whether in respect of each relevant record, the power should be exercised.
Mr Grass submits that the power should be exercised because a future decision-maker might wrongly conclude from the relevant record documents that his wife’s date of birth was [xxx] 1954 and their marriage is unlawful. He argues that unless the relevant records are amended, he and his wife may be prejudiced in their future dealings with the Department.
The Act does not prescribe the factors to be taken into account in deciding whether the power to amend a record of personal information, should be exercised. The discretion to amend “is unfettered, other than, presumably, that it must be exercised in a way that is in general harmony with the objects of the legislation”: Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489 at [11]. While the power is not restricted to so-called active or current records, nonetheless the nature of the document is relevant to the exercise of the discretion. In my opinion a cautious approach should generally be adopted in the exercise of the power to amend when the relevant documents are plainly historical records. Self-evidently the amendment of such records may result in the record itself becoming nonsensical or misleading.
Also relevant to the exercise of the discretion is whether, as in this case, the agency’s current records correctly record the personal information about which the applicant complains. In this case Mrs Grass agrees that the Department’s current records accurately record her date of birth and marital status.
A further relevant factor in this case is the foreshadowed Departmental review of the date of birth issue. Until that review in completed in my opinion it would be premature to exercise the discretion.
Having examined each relevant record and considering the factors that weigh for and against the exercise of the discretion, I am not persuaded that the power to amend the relevant records should be exercised.
Annotation of records
Given my decision not to exercise the power to amend the relevant documents, s 51 of the FOI Act instructs that Mr Grass’s application for amendment must be treated as an application to annotate those documents: s 51 of the Act (Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489 at 498). I have decided the appropriate course in this matter is to remit that application to the Secretary for determination.
Conclusion
The power to amend the subject documents cannot be exercised except in relation to the relevant records. I have decided not to exercise the power to amend those records. As a consequence Mr Grass’s application for amendment must be treated as an application for annotation of those records. The reviewable decisions made in relation to Docs. E 3(2), GGG, JJJ, CC, 36(1) and 36A to 36P are set aside and remitted to the Secretary under s 43(1)(c)(ii) of the AAT Act, to determine Mr Grass’s deemed application for the annotation of those documents. The balance of each reviewable decision is affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...............[SGD].........................................................
Associate
Dated 17 October 2014
Date(s) of hearing 26 September 2014 Applicant In person Solicitors for the Respondent DLA Piper Australia ANNEXURE A
Schedule of Offending Documents
| Document | Description of document | Statement(s) to which the Applicant seeks amendment | AAT Decision |
| A4 | Information Brief regarding Mrs Corazon Grass | 1. “The MRT also found that the applicant’s true date of birth is [xxx] 1954” | Not incomplete, incorrect, out of date or misleading |
| 2. “Information regarding the character of Ms Grass had not been assessed when her application for citizenship was initially approved” | Not personal information about Mr and/or Mrs Grass | ||
| A3 | Briefing note relating to administrative procedures in cancelling Mrs Corazan Grass’ citizenship application | 1. Mrs Grass’ birth date was amended “despite not having any supporting documents” | Not personal information about Mr and/or Mrs Grass |
| 2. “No consideration was given to the issues around (Ms Grass’) identity at the time (that she was granted Australian Citizenship on 21 May 2009)” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 3. “This interview (relating to the cancellation of her citizenship) was terminated when Ms Grass’ spouse became aggressive during the interview and would not allow his wife to speak” | An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 4. “Mr Grass’ dealing with the Department have, on numerous occasions, been of a somewhat aggressive nature. This coupled with the fact that he showed a great reluctance to allow his wife to speak for herself did make the cancellation process somewhat fraught.” | An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| E3 | Email correspondence between Megan Slattery, Karen Kinsela and others dated 19 July 2010 | 1. “decision to change this client’s DOB to her fraudulent DOB” | Not incomplete, incorrect, out of date or misleading |
| 2. “based on the person not being of good character for Ms Corazon GRASS b. [xxx] 1954” | Power to amend can be exercised. Remit to Secretary | ||
| CC | Email correspondence between Olga Yakovchyts and Ciare Forte and others dated 17 March 2010 | 1. “…Corazon Gonzales Elauria born [xxx] 1954” | Power to amend can be exercised. Remit to Secretary |
| EE3 | Letter to Mr Grass from the Department dated 5 December 2013 | 1. “On this basis, the department will now review the factual accuracy of its record of your wife’s personal information held by the department” | Not personal information about Mr and/or Mrs Grass |
| FF2 | Email correspondence between Megan Slattery, Linda Rossiter and others dated 27 July 2010 | 1. “I found Ms Grass’ correct date of birth to be [xxx] 1954” | Not incomplete, incorrect, out of date or misleading |
| 2. Reference to bogus date of birth | Not incomplete, incorrect, out of date or misleading | ||
| 3. “I note that the original FOI decision indicated that it only considered two departmental files…when in fact there were also the following other files available which contained clear evidence of Ms Grass’ true date of birth” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| VV | Email correspondence between Ombudsman HROEC Enquiries NSW and Megan Slattery dated 27 July 2010 | 1. “As previously advised, at the time Ms Grass’ case was decided in June 2009, the officer failed to obtain additional information relevant to the determination of the circumstances of the case, which was an oversight on the officer’s part” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) |
| 2. “In failing to request all of Ms Grass’ departmental files, the officer failed to see the department had previously determined that Ms Grass was using a bogus date of birth (ie [xxx] 1966), that the MRT had disputed Ms Grass’ claims that her date of birth was [xxx] 1966 and agreed that Ms Grass’ true date of birth was [xxx] 1954…” | An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 3. “If the officer had requested files and investigated the matter more thoroughly, the officer would have also seen that the FOI section who changed the Department’s systems to reflect Ms Grass’ date of birth as [xxx] 1966 in 2008 failed to take all of Ms Grass’ files into consideration…and also failed to verify through the Australian Embassy in Manila further identity details that would have again… proven Ms Grass’ true identity” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 4. Reference to Mrs Grass’ bogus date of birth | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 5. Reference to Mrs Grass using a bogus identity | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| 6. “she failed to provide any evidence, in writing or at interview that she is of good character” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) | ||
| DDD | Email correspondence between Megan Slattery and Olga Yakovchyts dated 24 September 2009 | 1. “Note DIAC and MRT conclude correct date of birth was [xxx] 1954 and not [xxx] 1966” | Not incomplete, incorrect, out of date or misleading |
| 2. “Please note DIAC and MRT determined as a matter of fact that client’s date of birth was [xxx] 1954 (sic) but FOI have changed the date of birth based on information provided above that is questionable. I suspect that FOI did not consider all the information available to the Department as only two files were listed as evidence considered on the FOI decision” | Not personal information about Mr and/or Mrs Grass | ||
| JJJ | Notice of Intention to consider cancellation of Mrs Grass’ citizenship approval application dated 11 May 2010 | 1. “Considering that your true date of birth is [xxx] 1954…you are actually in a bigamous relationship with Mr John Grass and that your marriage to him is considered by the NSW Registry of Births, Deaths and Marriages to be null and void.” | Power to amend can be exercised. Remit to Secretary |
| 2. Reference to bogus identity | Not incomplete, incorrect, out of date or misleading | ||
| JJJ1 | Email to Mrs Grass from Megan Slattery dated 28 May 2010 | 1. “Even though the FOI section believed that there was enough evidence at the time to approve your request to amend your date of birth, they did not in fact take all Department files and therefore some information into consideration when making that decision. They also did not investigate all matters regarding your identity comprehensively.” | Not personal information about Mr and/or Mrs Grass An opinion not within pars. (a) or (b) of s 58AA(1) |
| KKK3 | Departmental Decision Record relating to Mrs Grass’ application | 1. References to date of birth as [xxx] 1954 and [xxx] 1966 (also used) | An opinion not within pars. (a) or (b) of s 58AA(1) |
| 30E | Undated email from Heather Penhaligon to Emma Davis | 1. “fraud of Mr and Mrs Grass are willing to perpetuate” | An opinion not within pars. (a) or (b) of s 58AA(1) |
| 36 | Record of interview of Mrs Grass whilst in detention | 1. Reference to date of birth as [xxx] 1954 | Power to amend can be exercised. Remit to Secretary |
| 2. Assumption of relationship – “Partner of Liwanag, Obello” | Not incomplete, incorrect, out of date or misleading | ||
| 36-A-P | Departmental file of Mrs Grass (Corazon Barreda) | 1. Records Mrs Grass’ date of birth as [xxx] 1954 | Power to amend can be exercised. Remit to Secretary |
| H17 | Screenshot of ombudsman event/decision detail recorded on 31 January 2008 | 1. Reference to DIAC and MRT concluding correct date of birth is [xxx] 1954 | Not incomplete, incorrect, out of date or misleading |
| H18 | Further screenshot of H17 above (ombudsman event/decision detail recorded on 31 January 2008) | 1. Reference to DIAC and MRT concluding correct date of birth is [xxx] 1954 | Not incomplete, incorrect, out of date or misleading |
| H19 | Screenshot of file note made by Department officer, recoding information received form “Manila” about Mrs Grass | 1. References to correct date of birth as [xxx] 1954 and bigamous marriage | Not incomplete, incorrect, out of date or misleading |
| H20 | Further screenshot of H19 (above) | 1. Reference to DIAC and MRT recognising correct date of birth as [xxx] 1954 | Not incomplete, incorrect, out of date or misleading |
| GGG | Email correspondence between Megan Slattery, Eva El-Zahoul and others | 1. Reference to correct date of birth as [xxx] 1954 | Power to amend can be exercised. Remit to Secretary |
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