Leng and Minister for Immigration and Citizenship
[2011] AATA 129
•28 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1811
GENERAL ADMINISTRATIVE DIVISION ) Re RITA MUDE YOHANA BATISTA LENG Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Regina Perton Date28 February 2011
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant's personal records be amended to a birth date of 1 January 1942.
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Member
FREEDOM OF INFORMATION – application to amend personal information – date of birth – whether information is incomplete, incorrect, out of date or misleading – discretion to amend – decision set aside.
Freedom of Information Act 1982 ss 48, 50
REASONS FOR DECISION
28 February 2011 Regina Perton 1.
Rita Leng arrived in Australia on 5 July 2006 on a humanitarian visa. The Department of Immigration and Citizenship (the Department) has recorded
Ms Leng’s date of birth as 1 January 1952. On 23 September 2009 Ms Leng applied to the Minister for Immigration and Citizenship (the Minister) for amendment of her date of birth. Ms Leng states that she was born in 1942 not 1952.
2. The Minister’s delegate refused the application to amend the record on the basis that he was not satisfied that the Department’s records were incorrect or that the claimed date of birth was more likely to be correct than the recorded date. The applicant sought review of the decision with the Tribunal on 6 May 2010.
3. The issues for the Tribunal are whether, on the balance of probabilities, the Department’s records contain the incorrect date of birth for Ms Leng; and if so, whether the Tribunal should exercise its discretion to have the records amended.
Relevant legislation
4. Section 48 of the Freedom of Information Act 1982 (the Act) provides for amendment of personal records held by the Department:
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(a) that is incomplete, incorrect, out of date or misleading; and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.
5. Section 50(1) of the Act sets out the circumstances in which a Minister may amend the record of information:
(1) …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.
The Department’s records
6. The Department has a number of documents provided on behalf of Ms Leng which record her year of birth as 1952. These include:
·A proposal for an offshore humanitarian visa for Ms Leng’s daughter, Savia, dated 6 August 2003 in which Ms Leng is listed as a dependent with a date of birth of 1 January 1952.
·An application for an offshore humanitarian visa dated 19 April 2004 signed by Savia in which her mother’s date of birth is given as 1 January 1952.
·
A form entitled personal particulars for character assessment dated
3 December 2004 signed by Ms Leng in which her birth date is 1 January 1952.
·
A Health Undertaking form dated 6 December 2004 with a birth date of
1 January 1952 which Ms Leng signed with a thumbprint.
·A Document for travel to Australia signed by Ms Leng with a thumbprint in which the date of birth remains 1 January 1952
7. On 22 August 2008 Ms Leng signed a translated statutory declaration that her date of birth was incorrect in her passport and that it should have been 1 January 1940. On 16 February 2009, she lodged a request to amend her year of birth to 1940. The application was refused on 23 March 2009.
8. On 23 September 2009 Ms Leng lodged a fresh application to amend her year of birth in the Department’s records from 1952 to 1942. This time she was assisted by Ms Jennie Bunney of the Spectrum Migrant Resource Centre. Ms Leng provided a statutory declaration; a marriage certificate with a date of 25 May 1961 and a birth certificate and a death certificate for a son who was born in 1963 and died in 2005. The application was rejected on 17 December 2009 and that decision affirmed on internal review on 9 March 2010.
Are the Department’s records wrong?
9. Ms Leng is illiterate. She entered Australia on a Sudanese passport which was issued in Khartoum prior to her entry to Egypt. She does not have a birth certificate or a baptismal certificate from her local Christian church due to the lack of available records in the previously war-torn area in South Sudan in which she was born and raised. The application for humanitarian migration lodged in Cairo listed her as a dependent of her daughter, Savia. Savia’s two children and Ms Leng arrived in Australia together.
10. In oral evidence, with an interpreter facilitating communication, Ms Leng was asked questions about her family and marriage. She listed the order of her eight children, with her eldest child being named as Africano who died in 2005. She repeated the same order for her children when asked for similar information in differently posed questions. She did not know what age she was when married or her age when she had her first child. She could not recall who helped her obtain her passport or why the year 1952 was chosen. While her memory on other matters appeared poor and sporadic, her recollection about her children was strong.
11. Ms Leng said that her doctors and other medical staff she interacts with believe she is older than the age recorded in her Australian documents. She provided letters from her general practitioner and a community nurse who were both of the opinion that she was more likely to have been born in 1942 than 1952 given her physical condition.
12. Ms Leng said that she had been seeking to have her age amended since she arrived in Australia. She said that the reason she was seeking amendment was because she wanted the record to be correct.
13. Ms Bunney stated that Ms Leng currently receives disability support pension so changing to an age pension will not provide any advantages to her. As a person arriving on a humanitarian visa, she is not required to have the 10 years of residence that those usually arriving in Australia are subject to. Ms Leng already accesses services usually available only to seniors due to the health professionals she consults being of the strong view that she is entitled to, and needs, such assistance.
14. Ms Leng’s daughter, Regena Giramnano provided a statutory declaration dated 1 February 2011 in which she stated her belief that her mother was born in 1942. She stated that she did not know why her brother Africano’s birth date was incorrect in the migration related applications. Regena said that she understands that her brother was around 40 when he died in 2005. She arranged for a Cairo based cousin to send a copy of the death certificate and said she did not know why they did not record her mother’s name on the certificate.
15. Regena stated that no official documents were needed when applying for a passport in Sudan. Regena stated that her mother’s name was misspelt in the passport and the wrong date given for the date of birth.
16. Regena gave the opinion that her mother has continued with the application to change her date of birth because:
…if something is wrong, she likes it to be corrected. My mother is the type of person who would like everything in order before she dies. An example of this is a no interest loan she has. She is supposed to pay $40 a fortnight, but recently paid a large lump sum as she was not feeling well and she didn’t want to leave knowing she still had a debt. This is why my mother wants to ensure that her details are correct…
17. In oral evidence, Regena recounted the sad circumstances of her brother’s death. He had been unable to access appropriate and timely medical care. Her mother was with Africano at the time of his death. She said that officials did not ask her mother’s name when they prepared the death certificate. She said that a death certificate was issued when he died. She attended her brother’s funeral.
18. Savia told the Tribunal that she had not personally completed the forms for migration herself as she did not have the requisite English written language skills. Savia said that she was referred to a person who completed the forms in English by others in the Sudanese community in Cairo. She said that they had maintained a birth year of 1952 in the migration related documents because that was the date given in Ms Leng’s Sudanese passport. Savia said that changing the date at that time or trying to get a fresh passport from Sudan would have delayed their migration and complicated the situation. She said that the date of birth given for Africano in the migration documents was incorrect. Furthermore, the person completing the forms had not included the names of all of her brothers and sisters.
19. Savia said that she was not with her mother when Ms Leng obtained her passport in Khartoum. Savia was already in Egypt at that time. She did not know which male relative or friend assisted her mother in obtaining the Sudanese passport.
20. The Tribunal acknowledges that it is a difficult task for Ms Leng to provide corroboration of her date of birth. She is illiterate in her native language and in English. She appears to have a poor memory in relation to some matters. However she recited the order of her children at least three times and each time the order was the same. It differed from that on the migration application form and related forms. The information on those forms described only some of her children. The key child on whose age she is relying as being her eldest, her late son Africano, was listed as born in 1983 on the migration application form rather than 1963 as shown on the birth and death certificates. The Tribunal notes that only four of Ms Leng’s five children were listed on the form. A Peter L Ndenge whose email address only is given is recorded as assisting Savia to complete the form.
21. The Tribunal is not satisfied that the most recent documentation is reliable enough on its own for a decision to be made in favour of Ms Leng, given the manner and timing of its creation and provision. The Tribunal believes, however, that the date of birth given in her passport and in the migration related documentation is no more reliable or accurate in relation to Ms Leng’s age than the dates in the most recent documents.
22.
However, there is also the evidence from Ms Leng’s doctor, Dr Jack Deady who on 5 January 2010 provided a letter in which he stated his belief that Ms Leng was more likely to be 68 than 58. Jamuna Parajuli, a refugee health nurse at Darebin Community Health, also provided a statement that she had been in contact with Ms Leng for at least two and a half years and that since she had known her,
Ms Leng had continuously raised the issue of her real age. Her previous general practitioner, Dr Marion Bailes, who had worked with Ms Parajuli, was also concerned about her real age as that could reflect the diagnosis and treatment of her medical problems.
23. In relation to Ms Leng’s daughter’s evidence, the Tribunal is of the view that the details on Africano’s death certificate seem more likely to be valid in their current form than if Ms Leng’s name was recorded. If someone was purchasing a made to order certificate the Tribunal is of the opinion it would be more likely to have his mother’s name on it than have it described as unknown. Ms Leng’s explanation and that of her daughter that no one asked her name and her evidence about being there at the time of his death appears credible.
24. Jenny Bunney of Spectrum MRC provided a comprehensive submission dated 20 July 2010. She has worked in the settlement sector for more than eight years and has seen many clients with incorrect dates of birth, spelling of names etc. Her statement outlines her questioning of Ms Leng, details of the years in which war broke out in south Sudan where Ms Leng was born and the like. Ms Bunney is strongly of the view that Ms Leng was more likely to have been born in 1942 than 1952.
25. The Tribunal has been informed that Ms Leng’s disability support pension is in fact higher than the age pension she will receive if her date of birth is changed in official records. She is also receiving access to services that are usually only available to those over 65. Hence, there is no reason for her to persist with this application as far as access to Australian benefits is concerned. Nonetheless she persists on the basis that she wants the records to reflect what she believes is closer to her actual age.
26.
The Tribunal is satisfied, on the balance of probabilities, that the Department’s records concerning the age of Ms Leng are incorrect. The Tribunal is satisfied that a birth year of 1942 is more likely to be correct than one in 1952. Her actual date is unknown so therefore, in accord with standard practice, the date is recorded as
1 January. The Tribunal therefore finds that it is appropriate to amend the records.
DECISION
27. The Tribunal sets aside the decision under review and substitutes a decision that the applicant's personal records be amended to a birth date of 1 January 1942.
I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
Signed: …………………………………………
Kate Conners Associate
Dates of hearing: 14 October 2010, 10 February 2011
Date of decision: 28 February 2011Advocate for applicant: Ms J Bunney
Advocate for respondent: Ms A Linacre
Solicitor for respondent: Clayton Utz
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