Michel Vann Lee and Minister for Immigration and Citizenship
[2013] AATA 532
•31 July 2013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/5418
GENERAL ADMINISTRATIVE DIVISION )Re: Michel Vann Lee
Applicant
And: Secretary, Department of Immigration and Citizenship
Respondent
DIRECTION
TRIBUNAL: Mr D Letcher, Senior Member
DATE: 11 February 2014
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to include a citation in paragraph 3 of the decision.
Paragraph 3 should read:
Pursuant to section 57A of the FOI Act, the applicant now seeks review of the IC’s decision. (See ‘O’ and Department of Immigration and Citizenship [2012] AICmr 27)
......[sgd].............................................................
D Letcher
Senior Member
[2013] AATA 532
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5418
Re
Michel Vann Lee
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 31 July 2013 Place Sydney The decision under review is affirmed
..........[sgd]..............................................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - Request to amend date of birth on government records – onus on Minister to prove records not incorrect –Cambodian birth certificate - conflicting dates of birth - authenticity of documentation – decision under review affirmed
LEGISLATION
Freedom of Information Act 1982: ss48, 50(1), 54L, 55D(1), 61(1)(b), 93A
SECONDARY MATERIALS
Freedom of Information Guidelines
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
31 July 2013
On 14 March 2011 the applicant applied under s 48 of the Freedom of Information Act 1982 [‘the FOI Act’] to the then Department of Immigration and Citizenship (the Department) to change his recorded date of birth from 20 February 1954 to 20 February 1947 on the basis that the record was incorrect. He submitted a statutory declaration in support.
LEGISLATIVE BACKGROUND
Under s 50(1) of the FOI Act, records may be amended where the information is “incomplete, incorrect, out of date or misleading”.
On 15 April 2011 the Department refused the applicant’s request to amend his date of birth. The applicant sought review of this decision by the Office of the Australian Information Commissioner (“OAIC”) under s 54L of the FOI Act. The Information Commissioner [‘IC’] affirmed the department’s decision. Pursuant to section 57A of the FOI Act, the applicant now seeks review of the IC’s decision
Pursuant to s 93A FOI Act, the IC is empowered to issue Guidelines for decision-makers concerning such applications. The Tribunal is bound to have due regard to such policy. The Guidelines provide that a decision-maker should undertake ‘a reasonable investigation’, and carry out assessment of the available evidence including consideration of the context in which documents were created and the significance of the amendment sought.
Section 55D(1) FOI Act stipulates that in an IC review the onus is on the agency to establish that its adverse decision is justified and as the Tribunal stands in the shoes of the maker of the reviewable decision it must apply the same test (ref s61(1)(b) FOI Act). Thus, in this case there is an onus on the Minister to prove on the balance of probabilities that the current recorded date of birth is not incorrect [or that for some other reason it should not be amended].
FACTUAL BACKGROUND
The applicant was named Nguyen Manh at birth. His mother is Cambodian, his father was Vietnamese and he was born and raised in Phnom Penh, Cambodia.
The applicant said he had an original Cambodian birth certificate in French and Cambodian languages showing a birthdate of 20 February 1947. In 1968 his parents wished him to study in France and he said that they had the birth certificate verified by the then French colonial government. He said that he had enrolled late at school and so had just completed year 12 in 1968, even though he was then 21 years old. However, due to financial and political troubles, he did not go to France. [It is possible that there was a misunderstanding as to the provenance of the original certificate. The applicant’s statutory declaration says he obtained the certificate from “Cambodia under French Colonial” which would be correct in 1947, but as Cambodia won independence in 1953 it would not be correct as at 1968. Exactly why a verification of a French colonial document would be needed for entrance to France was never made clear].
In 1970, during instability and civil war, the applicant left Cambodia and went to Vietnam, taking with him his original birth certificate and personal photographs. Later, while the Khmer Rouge were in power, he brought his mother across to Vietnam. In 1980 he left his original birth certificate with his mother and escaped as a refugee by boat to Pulau Bitang Island in Malaysia and later was granted entry to Australia. He says that his mother migrated to Australia in 1990 and brought with her his original birth certificate.
At the interview on 16 November 1980 in Malaysia for his entry visa he says he told an interpreter that he was 34 years old, but the interpreter made a mistake and said he was born in 1954 and that date was put on the visa.. [I note that in November 1980 the applicant was either 26 or 33 years old].
The applicant said that he was aware of the mistake but did not know where or how to go about changing the date.
The applicant obtained naturalisation on 16 February 1984, signing next to a birth date of 20 February 1954; received an Australian passport in 2004 showing his birth date as 20 February 1954; changed his name to the present Michel Vann Lee on 12 July 2004 again with the birth date 20 February 1954 and his driver’s licence and wife’s citizenship records have the same birth date.
EVIDENCE BEFORE THE TRIBUNAL
The applicant gave evidence, with the assistance of an interpreter, and commenced by saying that his reasons for seeking the change of date were to legitimise himself by name and date change as the son of his mother, and to enquire on her behalf about re-acquiring a property in Phnom Penh she was forced to abandon when fleeing the Khmer Rouge in about 1976.
The applicant said that in 2008 he went to Cambodia specifically to seek verification from the new government of his original birth certificate. He said that he first took the certificate to the Australian Embassy in Phnom Penh and arranged for the Vice Consul to certify a copy of both it and an English translation. He met a Cambodian named Sok in the coffee shop of his hotel. Sok said he would help him obtain the government verification and took the original away with him. However, Sok later demanded $US20,000 before he would return the original and the applicant does not know Sok’s whereabouts. The applicant returned to Australia with the “certified copy” but without the “original”.
On 15 March 2011, the applicant made a FOI request for amendment of the Department’s record. He was asked to produce his original birth certificate in support of his claim.
On 31 March 2011 he saw a case officer who says the applicant told him that he had never had the original and that “to obtain an original extract of birth certificate you were asked to pay US$20,000 by the authority in your birth country.” Later that day, the applicant rang the case officer stating that in fact he had lost his original certificate. On 5 April he was interviewed by the same case officer who says that the applicant told him that the original certificate was never in his possession [T page 10].
In 2010, the applicant returned to Phnom Penh because “I really wanted to find Sok to get back the original birth certificate” but he could not find him. He obtained a translation of his copy in Phnom Penh because “I did not know where to get it translated in Australia”, and presented the documents to the Australian Embassy and obtained a certified copy signed by an Australian Senior Consular Official.
The applicant also tendered three one sentence statements of Mr Tran and Mr Van [in Vietnam] and Mr Nguyen [Sydney] saying that he was born in Cambodia in 1947. The applicant did not contest the respondent’s objection that a Tribunal direction had been given that full statements of any witnesses were to be provided. None of the witnesses was available for cross-examination or elaboration on their means of knowledge. No plausible reason for unavailability by telephone or in person was advanced by the applicant. The applicant asserted that he knew each of the men as a boy. In these circumstances I give these statements very little weight. The applicant said that no family evidence was available because his mother could not walk and had dementia, his wife had back pain and he has no contact with his three sisters.
The respondent relied on a statement of Ms Quinn Tran, Principal Migration Officer of the Australian Embassy Cambodia, employed by Immigration since 2000. In her statement she said:
“Based on my experience, very little weight can be afforded to official documentation in Cambodia. This is because government officials in Cambodia are paid a low wage, consistent with the low income levels across the country. Official salaries of government officials can start as little as US$2 a day and in many cases corruption is the only alternative to supplement a meagre income. Given the significant revenue that can be raised in issuing documents regarding births, deaths and marriages it is not surprising that clients are able to obtain key documentation to support fraudulent visa claims with relative ease.
As a consequence, fraud in the caseload remains very high in Cambodia. Cambodian documents such as birth certificates, death certificates, passports, family books, residence books and school records cannot be relied upon in themselves. This is due to the fact that many documents can be obtained on a self-reporting basis and may be genuinely issued but fraudulently obtained. Additionally, verifying the documentation is resource intensive in that there is no central registry for birth, deaths and marriages – they are held in individual communes or districts, each of which issues them separately and therefore the procedures vary. No records exist for documentation prior to 1979 due to the Khmer Rouge regime and if they do exist little reliability can be placed on them.”
Ms Tran also stated that when the Embassy sights an original document, and certifies that a photocopy is a true copy of the original, it does not mean the original is authentic or that the contents have been verified to be true, only that one is an actual copy of the other.
FINDINGS AND CONCLUSIONS
In support of his FOI request for amendment, the applicant produced three main documents:
(1)Copy made in 2008 of his “original” birth certificate in French and Cambodian dated 23 February 1947, and authenticated by Yung Say dated 11 September 1968 and Greg Eggins Australian Embassy Phnom Penh in 2008.
(2)English translation from the French portion of the copy “original” birth certificate on 29 May 2011.
(3)“Unofficial translation” by Pyramid Co Ltd Phnom Penh dated 16 December 2010 of the copy “original” certificate already signed by Greg Eggins in 2008, but this translation also signed by Silas Gillespie Senior Consular Official 16 December 2010.
The respondent made it clear that it disputed the authenticity of the “original” birth certificate.
Looking at the certificate, the question “Marital ranking of mother” had the typed answer “permier rang”- an obvious error of “permier” for “premier” [first marriage]. In answer to the Tribunal, the applicant agreed that this was a very unusual mistake in a French colonial document, but then said that “maybe the certificate was a 1968 re-type of the 1947 document”. This was the first such suggestion and it did not explain the presence of the handwritten portions in Cambodian script.
Additionally, the applicant’s father’s birth date in the certificate appeared as’ 18 July 1923’ but his age as ‘29 years’. In February 1947 he would have been only 23 years, although in February 1954 he would have been 30. The applicant eventually said: “I don’t know if it is a copy of the 1947 certificate or made in 1968”. In fact, another document gave a date of birth as 1924 which would have made the father 29 years old as the certificate stated – but at 1954 not 1947 [T page 90 – see below].
Cambodia had a troubled history after the French defeat at Dien Bien Phu in 1954 which led to the withdrawal of France from Indo-China and followed closely Cambodian independence in 1953. In the early 1960’s Prince Sihanouk ruled but allowed the USA to bomb areas used by the Viet Cong until ousted in a coup in 1970. Civil war intensified between later governments and the Khmer Rouge. On 17 April 1975 those forces led by Pol Pot entered the capital and forced the inhabitants out into the country [‘the killing fields’] where many died. Later, the Vietnamese army took control, Sihanouk returned and in 1997 Hun Sen gained the control that he still exercises. [Phillip Short “Pol Pot: Anatomy of a Nightmare” [2004] N.Y. p.4-6].
The applicant said that he took his original 1947 birth certificate to Vietnam with him in 1970 and kept it for some time. At first he said he “brought the original birth certificate with him to Australia” but later asserted that he left the certificate with his mother in Vietnam and she brought it to Australia. It was that original that he took to Cambodia in 2008.
The respondent relied on a sponsorship application of the applicant in 1989 concerning his mother and three sisters. It included a handwritten document with official Vietnamese stamps [Supplementary T page 88-90]. In translation it was headed “Application for Certification Substituting Birth Certificates” and was an application by his mother dated 28 September 1988 in Vietnam. It included:
“- My family used to live in Cambodia but my husband was a Vietnamese, therefore our children are interracial, they were all born in Cambodia.
-Unfortunately, the Pol Pot gang destroyed my city, and evicted us out of our house on 17-04-75. I and the children could not take anything with us, including personal documents and our possessions, apart from 2 pairs of clothes each. While fleeing to take refuge in the forest, my husband died. I and my children arrived in Vietnam on 01-01-76.”
The document also included an entry “Nguyen Manh 20-2-1954 son” and “Nguyen Van Minh Year of Birth 1924 Father – died in 1975”.
This document is important for three reasons. First, it gives the applicant’s birth date as 1954 at a time when the applicant says his mother had the original birth certificate saying 1947. Second, it requests “the authority to certify in order to substitute for birth certificates because we do not have birth certificates as stated above” at a time when the applicant says his mother had his original 1947 certificate with her. Third, if the applicant’s father was in fact born in 1924 then he would have been 29 years old in 1954 [as noted on the alleged 1947 certificate] but only 23 in 1947.
The applicant said that he had last worked in 2006-2007 and since then had received a carer’s pension for looking after his mother who had dementia, a severe stroke in 2012 and was now aged 88 years. He agreed he knew that if his mother was hospitalised he would be entitled to no more than 63 days carer allowance per year, and if she died he would receive nothing. It was put to him that his real reason for seeking a change of date on the departmental records was that, if he was born in 1947 he would have an immediate entitlement to the Age Pension, but if born in 1954 he would not be eligible until age 65 in 2019. He responded: “If it was put on 1947 and if I got age pension I work hard and pay tax…I repeat, at the moment the most important thing is trying to do mother’s wishes. About old age pension I haven’t been thinking about it otherwise I do it a bit earlier [sic]”.
FINDINGS
The applicant said his main reason for seeking amendment of Australian records was to please his mother and to claim back her property in Phnom Penh. However, his mother has had dementia for years and he has never made any actual enquiry in Cambodia about whether or how he could regain the property.
The applicant said that he went to Cambodia in 2008 to obtain the current government’s verification of his original 1947 birth certificate. The necessity for verification of an official colonial certificate was never proved or explained by the applicant. His evidence that he gave his original birth certificate to a stranger he first met in a hotel coffee shop was implausible. His reasons for doing so were unlikely, given that he had never directly sought information, nor a copy of any surviving certificate or a new certificate from the new government. The high probability was that any certificate would have been destroyed during the Pol Pot regime, but the applicant was quite clear that he had never asked any assistance from Cambodian authorities.
The applicant said that he took his copy of the certificate back to Cambodia to have an English translation certified as he could not obtain a translation in Australia. In 2010 there was a large Cambodian community in Sydney, diplomatic representation in Canberra and interpreters active in the courts. I do not accept that he could not obtain a translation in Sydney at that time. He said that he took the copy to Cambodia so that the Australian embassy could translate it. Exactly why he thought that necessary or desirable was never clear. His asserted aim was to have the Cambodian government recognise him as the son of his mother, and how the Cambodian government would find a translation useful was unexplained. A more plausible explanation is that his intention was directed to persuading the Australian government of his 1947 birth.
In 2004, the applicant obtained a change of name from Nguyen Manh to Michel Vann Lee in Australia. The applicant agreed he had taken no steps to change his name to his original birth name. Further, it was not until 2011 that the applicant took steps to change his birth date.
The applicant’s request for change of date of 14 March 2011 [T page 15] states; “When I applied for citizenship back in the day [sic] I had not taken notice of my date of birth and I did not think it was very important. I have since obtained my original birth certificate from Cambodia…”. However, after arrival in Australia the applicant had cause to notice his birth date on his incoming passenger card [T page 92], his mother’s 28 September 1988 application [T page 90] and numerous other documents including driver’s licence and passports.
When asked in the Tribunal about his father, the applicant said: “My father died a long time ago. I could not remember when. I’m 60 something so a little bit dementia”. Asked about his mother’s statement in 1988 that his father had perished in 1975 he said: “Could be my mother’s second husband”, although a second husband had never been suggested before and the name and birthdate of the deceased were obviously those of his father.
I find that there are grave doubts that the alleged original 1947 birth certificate was a genuine document ever in the possession of the applicant or his mother in Cambodia. The document shown to the Vice Consul in 2008 was, more probably than not, created in 2008, not in 1947 and probably not in 1968. The spelling error of “permier” and the father’s age of 29 years point to it not being a genuine record of a birth in 1947. I find the applicant’s evidence that his mother brought the original to Australia is implausible. I believe that the applicant had the document made to build a case for the Australian government to believe the earlier date of birth. It is not necessary for the Tribunal to come to a position of certainty about when or how the documents came into existence. On the balance of probabilities I find that the copy alleged to be of a 1947 or 1968 birth certificate is not a copy of a genuine document. I do not believe there is substantial evidence establishing the birth of the applicant to have occurred in 1947.I find the repetition of the birth date 20 February 1954 in the 1980 interview, in his mother’s application in 1988 and in all Australian documents a persuading factor.
In 2008 the applicant had already given up work, his mother was about 83 years old, in poor health and could die or require hospital imminently. The applicant’s future financial security was an incentive to change his date of birth so that he was assured of an Age Pension in 2012 rather than 2019. The point of having documents ‘certified’ by the Australian Embassy in Phnom Penh was to persuade the Australian authorities, not the Cambodian government.
CONCLUSIONS
There are inconsistencies and contradictions in the documents relied on by the applicant. I found his explanations of why he went to Cambodia and what he did in 2008 and 2010 unsatisfactory and unlikely. His failure to advance at all his alleged attempt to regain property of his mother is suspicious, and makes more probable the motive of obtaining a pension benefit sooner than his entitlement.
I, therefore, believe that the birth date information contained in the records is not incorrect nor should it be amended for any other reason.
The decision under review is affirmed.
DECISION
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member
...............................[SGD]...............................
Associate
Dated 31 July 2013
Date of hearing 23 April 2013 Applicant In person Solicitors for the Respondent Ms L Buchanan, Australian Government Solicitor
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