Mulder and Department of Immigration and Multicultural and Indige Nous Affairs
[2002] AATA 1347
•28 November 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 1347
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/246
GENERAL ADMINISTRATIVE DIVISION ) Re JACK MULDER Applicant
And
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr G A Mowbray Date28 November 2002
PlaceCanberra
Decision For reasons given orally the Tribunal varies the decision under review as follows: 1. A note is to be added to the front of Departmental file A99/000918 that reads
“The Department is satisfied that Mr Mulder has at all times been an Australian citizen since 13 October 1977, and on advice of the Dutch Consul-General of 24 October 2000, did not have Dutch citizenship after acquiring Australian citizenship. As such Mr Mulder would not have been subject to any conditions, regarding his entry into and stay in Australia, which appeared on his Netherlands travel documents.”
2. The same note is to be added to the documents at pages 19, 29-35, 40-43, 48-50, 68, 69 and 71-73 of the T-documents.
3. The documents at pages 67 and 68 of the T-documents are to be amended by placing an asterisk (*) next to the words “Indonesian father” and adding a note on the left hand side of the documents which reads
“* The citizenship application in fact states that Mr Mulder’s father was born in Indonesia.”
4. The document at page 29 of the T-documents is to be amended by correcting the spelling of Mr Mulder’s middle name to “Denis”.
5. The document at page 33 of the T-documents is to be amended by ruling a line through the two paragraphs “I also mentioned… Mr Watson said… in any personal interview” and adding a note that reads
“The factual basis of this advice has not been established to the satisfaction of the Administrative Appeals Tribunal.”
6. The document at page 34 of the T-documents is to be amended by ruling a line through the sentence “There are indications…” and adding a note that reads
“The factual basis of this alert has not been established to the satisfaction of the Administrative Appeals Tribunal.”
.................(Sgd).......................
Member
CATCHWORDS
FREEDOM OF INFORMATION - request to amend documents – whether documents incomplete, incorrect, out of date or misleading – onus of proof – records of opinion – deletions – annotations – test for determining whether document is misleading
Freedom of Information Act 1982, ss 48, 50, 55, 61
Migration Act 1958, s 488
Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997)
Re Mann and Department of Health (ACT) (1991) 37 ALD 266
Re Searle and Secretary, Department of Family and Community Services [2000] AATA 371
Re Cox and Department of Defence (1990) 20 ALD 499
Re Gordon and Department of Social Security (1991) 25 ALD 335
Re Wiseman and Department of Transport (1984) 12 ALD 707
Re Jacobs and Department of Defence (1988) 15 ALD 645
Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369
Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135
Re Page and Director-General of Social Security (1984) 6 ALN N171
Crewdson v Central Sydney AHS [2002] NSWCA 345
Re Mulder and Department of Immigration and Multicultural Affairs [2001] AATA 545
REASONS FOR DECISION
24 January 2003 Mr G A Mowbray History of the Application
1. On 22 February 2002 Mr Jack Mulder wrote to the Minister for Immigration and Multicultural and Indigenous Affairs requesting correction of personal information under the authority of both section 15 of the "Privacy and Personal Information Protection Act 1998" – presumably intended as a reference to the New South Wales privacy legislation of that name or alternatively to the Commonwealth’s Privacy Act 1988 - and section 48 of the Freedom of Information Act 1982 (“FOI Act”). The request (T4) was said to refer to "any and all information held by whatever means by any and all D.I.M.A. (sic) departments Australia-wide". Attached to the letter were details of errors alleged in a set of 73 folios from file 99/000918 of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA or “the Department”). A total of 53 of these folios were alleged to contain errors.
2. On 26 June 2002 the Tribunal received an application for review from Mr Mulder (T1). It referred to the Department's failure to notify a decision in relation to his request for amendment to errors in his personal information, which was to be deemed a refusal of his request "[a]s per Freedom of Information Act and Personal Information and Privacy Act".
3. On 27 June 2002 an officer of the Department wrote to Mr Mulder enclosing her decision of the previous day on his request for amendment of the 53 folios (T9). In that decision three of the folios were amended.
4. On 9 September 2002 the Tribunal wrote to Mr Mulder confirming in writing that his application for review was made in accordance with section 56 of the FOI Act but was not made under any provision of the Privacy Act. The letter set out the decisions the Tribunal had jurisdiction to review under the Privacy Act, all of which are decisions of the Privacy Commissioner.
5. Hearing of this matter commenced on 21 October and was adjourned at Mr Mulder's request. In a letter dated 4 November 2002 (Exhibit R7) the Department indicated to both Mr Mulder and the Tribunal that it would add a note to some of the 53 folios.
6. The hearing recommenced on 12 November, at which time Mr Mulder submitted an annotation he wished to have placed on each folio (Exhibit A4). Before adjourning the matter a second time I made a direction that amongst other things I required the Department to file and serve an outline of closing submissions. In those submissions the note proposed by the Department was extended, as was the list of folios to which the note would be added. Further amendments were also proposed for three other folios.
7. The hearing recommenced on 28 November 2002. Oral reasons for decision were given on that date varying the decisions under review. On 6 December 2002 the Tribunal received a request from Mr Mulder for written reasons in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975. A request for written reasons was also received from Mr Neely, the Department’s advocate, on 16 December 2002. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Legislation
8.The relevant provisions of the FOI Act are as follows
“48 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.”
“49 Requirements of an application for amendment
An application for amendment must:
(a) be in writing; and
(b) as far as practicable, specify:
(i) the document or official document containing the record of personal information that is claimed to require amendment; and
(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iv) the applicant's reasons for so claiming; and
(v) the amendment requested by the applicant; and
(c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).”
“50 Amendment of records
(1) Subject 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.
(2) The 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.
(3) To 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.”
“51 Annotations of records etc. following unsuccessful applications for amendments of records
(1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.”
“55 Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant access to a document in accordance with a request; or
(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
(3) Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:
(a) the person concerned has applied under section 54 for a review of the decision;
(b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c) he or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.
(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:
(a) except where paragraph (b) or (c) applies—the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;
(b) where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made—the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or
…
(5) The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
(5A) The Tribunal's power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.
(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
…
(c) the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii) 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.”
“56 Application to Tribunal where decision delayed
(1) Subject to this section, where:
(a) a request has been made to an agency or Minister in accordance with section 15; and
(b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.
(1A) Subject to this section, where:
(a)an application has been made to an agency or Minister under section 48; and
(b) a period of 30 days, in relation to the application, mentioned in section 51D has expired since the day on which the application was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to the Tribunal under section 55, taken to have made, on the last day of that period, a decision refusing to amend or annotate the record of personal information to which the application relates.
…
(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:
(a) to grant, without deferment, access to the document in accordance with the request; or
(b) to amend or annotate the record of personal information to which the application relates;
the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.
(6) Before dealing further with an application made by virtue of this section, the Tribunal may, on the application of the agency or Minister concerned, allow further time to the agency or Minister to deal with the request.”
“58 Powers of Tribunal
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
…”
“61 Onus
(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…”
9.I note in particular
· section 50(3) discourages deletions
· section 55(6) imposes certain constraints on the Tribunal when considering whether or not amend a record of an opinion
· section 56(1) and (1A) enabled Mr Mulder to make an application for review when no decision had been notified to him
· section 56(5) allows the Tribunal to treat the subsequent decision by the Department as a reviewable decision
· section 58(1) gives the Tribunal power to make other decisions in relation to a request as well as reviewing any decision made by an agency
· section 61 places an onus on an agency to establish the decision was justified or that the Tribunal should make a decision adverse to an applicant.
Issues
10. There are two broad areas of concern. The principal matter is that relating to amendments sought to 53 folios to which access had been granted. In addition the Department has accepted the Tribunal has jurisdiction to look at failure to grant access to a small number of documents.
Evidence
11. The documents before the Tribunal were the “T-documents” filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T9), the Applicant's exhibits A1 to A8, and the Respondent's exhibits R1 to R8. The documents that were identified in Mr Mulder's application for amendment are at T5, pages 19 to 73.
12. Oral evidence was given by Ms Dawn Gardiner, who worked in the Department's Freedom of Information Section from 1997 until earlier this year, and Mr Len Mitchell, an officer in the Department's International Movement Records area.
13. Mr Mulder was expressly asked whether he wished to give oral evidence and he declined. He asked that the following text in Exhibit A4 be attached to each and every document, together with a date and authorising signature
“Any reference in this document to Mr Mulder’s Residency and Citizenship Status which is and/or incomplete and/or misleading and/or incorrect and/or out-of-date and/or misrepresenting is hereby annotated:
Mr Mulder held permanent ordinary residence status in Australia since 18 March 1970 with a right to return from overseas to resume permanent residence.
Mr Mulder acquired Australian Citizenship on 13 October 1977 and as an Australian Citizen Mr Mulder would not have to be restricted by any visas in his Nederlands travel documents once Mr Mulder arrived in Australia and would not then be subjected to any conditions of any such Tourist visa.
Mr Mulder is an Australian Citizen and is free to enter and remain in Australia.”
14. Some idea of Mr Mulder's concerns can be gauged from the following extract from his Statement of Facts and Contentions (Exhibit A1)
“The issues are:
Whether DIMA concedes the applicant has been an ordinary resident of Australia since 18March1970 and an Australian Citizen since 13Oct1977.
There appears to be no official advice from DIMA to all relevant Commonwealth Departments up to this point in time to confirm of the abovementioned issues.
The Facts are:
Mr Mulder has been an ordinary resident and held permanent residence status in Australia with the right to return to resume permanent residence.
Mr Mulder acquired Australian Citizenship on 13 October 1977 and ‘would not have been restricted by any visas in a Nederland’s Travel document once he arrived in Australia’.. In spite the fact that Mr Mulder arrived in Australia on 5 November 1989 with a passport, which contained a V10 tourist visa.
DIMA was aware that Mr Mulder obtained the V10 tourist visa because he was travelling on a non-Australian passport. In order to return to Australia on a non-Australian passport Mr Mulder would have required an Australian visa in that passport, not to authorise his entering and remaining in Australia but to satisfy the airline on which he travelled that he had Australia’s permission to travel to and enter Australia. This was also confirmed with the original copy of Mr Mulder Certificate of Australian Citizenship and the additional fact Mr Mulder arrived with a one-way airline ticket. If the Department held some concern about the V10 visa, that concern was obviously laid to rest by the copy of the Certificate of Australian Citizenship. Mr Mulder would have believed that as an Australian Citizen he had the right to return to Australia in late 80’s to resume permanent residence.
At no point in time did the Department attempt to contact Mr Mulder to alleviate their doubt about his Residence and Citizen Status. Although these issues might have had some credence prior to the 21st of March 1991, these doubts should have clearly evaporated on the issue of Mr Mulder Australian Passport on the abovementioned date. Mr Mulder travelled on that Australian Passport at least 10 times between 18/3/93 and 22/7/96. No form of any attempt to discuss these issues with him occurred. There is no evidence that Mr Mulder relinquished Australian citizenship.
DIMA has not made any decision that Mr Mulder’s citizenship is other than that as documented by his Citizenship Certificate and the first Passport #K0581330, issued 21st of March 1991 and his second passport #L8932107, issued 10th of December 2000.
DIMA is the Commonwealth Department responsible for administration of the Migration Act. To alleviate any doubts within the department and those other commonwealth departments DIMA has incorrectly advised that they are holding doubts about Mr Mulder residence and citizen status, the department should advise those departments of the correct issues, a view needs to be formed, on the basis of the available evidence, as to what the situation is. The conclusion should be, that the available evidence indicates Mr Mulder is an Australian citizen and has permission to reside permanently in Australia.
Only until the abovementioned issues are rectified satisfactorily, other matters before the Tribunal can be reinstated and proceed after unnecessary delays.”
15. In summary this concern, which Mr Mulder repeated on numerous occasions, was that
· DIMIA incorrectly stated that he was not an Australian citizen or permanent resident
· this information was passed to other Commonwealth agencies
· those agencies used it to his significant disadvantage and with some serious consequences for him.
16. Ms Gardiner gave evidence that the file 99/000918 was raised in about 1999 and that the first folio (page 19 of the T-documents) says, "Australian/Dutch" because the Department was not sure at that time of Mr Mulder's citizenship. Information that Mr Mulder's father was Indonesian (pages 67-8) was taken from Mr Mulder's citizenship application. The procedures and requirements when someone enters Australia had varied over time.
17. She had not been aware of any attempts by Mr Mulder to contact her by telephone. The phone number referred to by Mr Mulder in Exhibit A2 was not hers. Her only contact with him was through correspondence.
18. Mr Mitchell gave evidence on some of the documents in dispute
· pages 20 to 26 came from the Movement Records system. The abbreviation "Ctry: NETH" meant that Dutch authorities issued the travel document recorded in that entry. Entries with “Ctry: A” referred to an Australian travel document. "Lawful Until" indicated the validity of the last visa issued
· pages 28 and 34 were from a Department of Foreign Affairs and Trade computer system
· on pages 40 to 43 the NETH entry refers to the citizenship on the passport. I note on pages 40 and 41 the documents also refer to Australian citizenship. These records were taken from two other computer systems no longer in operation that were linked to Movement Records at that time. In Mr Mitchell's opinion a reader, including an officer of the Department is likely to form the view from these documents that Mr Mulder was a Dutch citizen at the time of the movement. In reaching that view an assumption would be made that people normally travel on documents of their own nationality, as passports are normally issued to citizens. The entries suggest Mr Mulder was at one stage a Dutch citizen and subsequently became an Australian. The records do not necessarily indicate dual nationality.
· pages 48 to 50 are again from the Movement Record system. They contain the word "NETH" which means that the person produced a Dutch travel document with a visa to enter Australia
· pages 51 to 66 were the complete movement records as at 6 August 1997. "Lawful Until: 22/08/1991" indicated the validity of the last visitor visa. It did not indicate that the person might be unlawful after that date.
19. Mr Mitchell gave evidence that a travel document and a visa are required to enter a country. For a visitor visa one would expect there to be a return air ticket presented, but he was unsure if that was an actual requirement.
20. If a person entering Australia presented a certificate of Australian citizenship along with the passport of another country he would expect the person to be referred to an Immigration Officer by Customs at the border to clarify his status. Mr Mitchell has not seen any record of referral relating to Mr Mulder. No record had been made of him presenting the certificate of Australian citizenship in entering Australia.
21. There is no obligation on an Australian to use an Australian passport. If, however, an Australian uses a non-Australian passport there is a requirement for a valid visa.
22. A migrant entry visa allows an indefinite stay in Australia. If the holder leaves again that person would need a resident return visa, which normally allows up to five years overseas but allows the person to remain indefinitely on their return to Australia.
23. The Department’s computer record system came on line in the early 1980s. Before that there was a paper record system.
Uncontentious Matters
24. Mr Mulder originally arrived in Australia on 18 March 1970 as a Dutch citizen. He was granted Australian permanent residency. He acquired Australian citizenship on 13 October 1977. Under Dutch law he consequently lost his Dutch citizenship. The Dutch Consul-General on 24 October 2000 confirmed that Mr Mulder had not at that time reacquired Dutch citizenship after obtaining his Australian citizenship. These facts were not contested between the parties. The evidence supports them and I so find.
Applicable Law
Onus of Proof
25. Section 61(1) of the FOI Act generally places an onus on an agency to justify a decision. However, it is not good enough for an applicant to merely assert the document is wrong. The applicant has to put some material before the Tribunal. In Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997) Senior Member Hotop, as he then was, said at [42]
“Although the general rule is that, in proceedings before the Tribunal, neither party bears a formal onus of proof, special provision in that regard is made by s.61 of the FOI Act in relation to Tribunal proceedings under that Act. Section 61(1) provides that, in such proceedings, the agency to which the relevant request was made has the onus of establishing that a decision given in respect of that request was justified or that the Tribunal should give a decision adverse to the applicant. In Re Mann and Department of Health (ACT) (1991) 37 ALD 266 the Australian Capital Territory Administrative Appeals Tribunal (President L J Curtis) explained the operation of s.71 of the Freedom of Information Act 1989 (ACT) - a provision whose wording is very similar to that of s.61(1) of the FOI Act - in relation to the review of a decision refusing to amend a record of personal information in accordance with an application made under s.48 of the former Act, as follows (at p.274):
“(34) In its application to decisions on requests made under s48 of the FOI Act, s71 operates in the following way. It is not sufficient for an applicant merely to assert that a document is incorrect or out of date or misleading. There is no onus on an agency to rebut a mere assertion. It is for the applicant to get a case off the ground by some showing as to the manner in which the document concerned is incomplete, incorrect, out of date or misleading and to put some material before the agency or, on review, before the tribunal to establish the point. Unless the applicant produces some material having probative value which, on the face of it, would show some relevant defect in the document, there is no case for the agency to meet...”.”
Opinion
26. Records of opinion cannot be amended unless based on a mistake of fact or if the author was biased, unqualified or acted improperly – section 55(6)(c). This has the effect of requiring the applicant to provide evidence to enable the Tribunal to make the relevant finding, then the onus will shift to the agency to satisfy the Tribunal that the above circumstances do not apply. In Re Searle and Secretary, Department of Family and Community Services [2000] AATA 371 Senior Member Beddoe said
“9. In so far as is relevant section 55 of the Act provides that application may be made to this Tribunal for review of:
(1) …
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48;…
(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a) …; or
(b) …; or
(c) the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii) 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.
Removing the double negatives this means that the Tribunal may only decide to require an amendment of a record of an opinion when the Tribunal finds as a fact that either (i) or (ii) (or both) apply in the particular case.
10. Section 61 of the Act provides that the agency, in this case, the respondent has the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to the applicant.
11. However, subsection 55(6) of the Act has the effect of requiring the applicant to provide evidence that establishes a factual basis on which the Tribunal could base a finding that a relevant provision of the subsection has not been satisfied. Failure to do this means the Tribunal will be unable to be satisfied that the provisions of the subsection have not been satisfied.
12. It is an evidential onus which requires the applicant to establish at least a prima facie case that a relevant condition has not been satisfied. The onus will then shift to the respondent to satisfy the Tribunal, on the balance of probabilities that subsection 55(6) applies. It is the respondent who has the overall onus of showing that the document should not be amended and it is for the respondent to satisfy the Tribunal that subsection 55(6) applies to preclude amendment once the applicant has raised a prima facie case to the contrary.”
27. I note also that opinions can be overtaken by events and therefore become out-of-date or misleading. In Re Cox and Department of Defence (1990) 20 ALD 499 Deputy President Todd said at [46]
“…an opinion is just that, and that the records were complete and correct records of the opinions held by the person who made them. That does not, however, detract from the fact that such opinions may be overtaken by events and thus be out-of-date; that the facts upon which those opinions were based may have been incorrect or incomplete; and that as a result the expression of the opinions, however bona fide they may have been when they were written may now have to be seen to be so flawed as to be misleading for the purpose of present resort to them.”
This passage is quoted in Re Searle at [36].
Rewriting History
28. In Re Cox a distinction was made at [40] between a record of information which is in question and the information itself
“I do, however, see much force in Mr Coppel's submission in subpara 5 of paragraph 38 above that what is amended under s 50 is not information but a record of information. Thus incorrect information can be recorded correctly. The record ought not be amended simply because, qua record, the information that it correctly records is incorrect information. Mr Coppel offered the example of an officially prepared criminal record recording a conviction which should never have occurred. It remained an accurate record of convictions. If, however, a conviction ought never have occurred but had nevertheless done so and been recorded, it would not be for the agency or the tribunal to remove that conviction from the record. By parity of reasoning, it was not for an agency or the tribunal to cure what was considered to have been an incorrectly formed opinion.” (emphasis original)
29. In Re Searle the agency contended this meant that one should not rewrite history and took the view that incorrect information is acceptable if recorded correctly. The Tribunal in Re Searle rejected the idea that amendment or annotation would necessarily be a rewriting of history
“34. The respondent relies on Re Cox (supra), submitting that this case allows for records to remain unaltered even if they are incorrect as any attempt to correct them would be rewriting history. I do not agree that this is what Deputy President Todd was alluding to. Instead I think the more reasonable approach to take is that the Tribunal in this instance was discussing the most appropriate form of amendment to be made to documents that were incomplete/incorrect etc if only because of the passage of time. Re Cox also suggests that opinions expressed at the time in their contextual and situational environment may need opinions inserted into the record at a later date if it is indicated that the earlier records may be incomplete/incorrect etc. This is extremely important where these opinions form part of the record which is available for use by the agency for administrative purposes and are likely to be used in the determination of rights. This is what has occurred in relation to the applicant.
35. By refusing to amend or annotate records, the Department has allowed information which is manifestly incorrect to remain on record. Information contained on these records are unsubstantiated allegations that were not subsequently investigated by the Department. By not allowing amendment or annotation the records would establish an unreliable picture to any later reader of the documents.
36. I do not accept that any amendment or annotation of these records would obliterate the text or rewrite its history. In response to the respondent’s contention that records written at the time are complete and correct records of the opinions held by the person who made them, the Tribunal in Re Cox (supra) said at 502:” (quotes passage set out at [27] above)
30. In Re Gordon and Department of Social Security (1991) 25 ALD 335 the applicant wanted medical reports deleted from a file. The Tribunal said at [27] that they should stand as a record of the views of the medical examiner at the time of examination. Opinions could always be tested. The Tribunal also quoted the following passage from Re Wiseman and Department of Transport (1984) 12 ALD 707 at 710, which makes absolutely clear the difficulties of a process of continuous updating of departmental records
“36. The alteration of a record in a file changes what has become a historical record. It will be remembered that the duty of George Orwell's Winston Smith, as an officer of the Records Department of the Ministry of Truth of Oceania in Nineteen Eighty-Four, was to carry out the "process of continuous alteration" whereby "day to day and almost minute by minute the past was brought up-to-date". Activity as extensive as that described by Orwell cannot have been contemplated by parliament in the enactment of Pt V. What was written is what was written, and that fact may have its own significance. The Tribunal notes in Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135 the comment that, in consequence of an amendment pursuant to s 48 which had been made by the respondent prior to the hearing, "It will be seen that there is a degree of artificiality in the record, in that Mr Bates' report as amended ... contains words which are not those of Mr Bates". In our view, this kind of artificiality is to be avoided. Further, the wholesale amendment and updating of records of information relating to personal affairs would impose enormous and unthinkable burdens on those whose duty it is to maintain those records. The amendment of government records is a serious matter, which parliament cannot have intended to be lightly undertaken. The addition of a notation, on the other hand, does not give rise to these difficulties, and may well be, in most cases, the appropriate way of giving effect to the interest of the individual in accuracy of records”
31. Mr Mulder vigorously pursued the line in the Tribunal that it was not his responsibility to point out errors, but rather it was the Department's responsibility to continuously update documents. As Wiseman shows, that is neither feasible nor desirable.
32. In Re Jacobs and Department of Defence (1988) 15 ALD 645 Senior Member Dwyer said at 655 that while it is generally undesirable to rewrite history and opinions, justice might require annotating in a way that clearly distinguishes the annotation from the original document. I think this is similar to the views expressed in Re Cox and Re Searle.
Deletion
33. The Australian Administrative Law Service (edited by Pearce) states at [767]
“The AAT has been reluctant to order that records be corrected through the deletion of material in them. This reflects a concern that history should not be rewritten: see Re Wiseman and Dept of Transport (1984) 12 ALD 707. Similarly, the Tribunal has been reluctant to countenance the removal of documents from the file: Re Cox and Dept of Defence (1990) 20 ALD 499.
This reluctance found legislative form in 1991 with the introduction of s 50(3) which provides that, when making an amendment, an agency must, to the extent that it is practical to do so, refrain from obliterating the text of the record as it existed prior to the amendment…”
34. On the other hand there are exceptional cases, and I refer to Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369. I note again that many of Mr Mulder's requests related to deletion of documents.
“Incorrect”
35. The Concise Macquarie Dictionary defines "incorrect" as
“Not correct as to fact; improper; not correct in form or manner.”
The Shorter Oxford English Dictionary defines "incorrect" as, among other things
“3. Not in conformity with a recognised standard; faulty.
4.Not in accordance with fact; erroneous, inaccurate.”
36. In Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135 the Tribunal said that a document may be incorrect either where assertions contained within it are factually erroneous or where opinions expressed are based on facts shown to be erroneous.
"Incomplete"
37. The Shorter Oxford English Dictionary defines “incomplete” as
“Not complete; not fully formed, made or done; not whole or thorough; wanting some part; unfinished; defective.”
The Concise Macquarie Dictionary says
“Not complete; lacking some part.”
38. According to Re Page and Director-General of Social Security (1984) 6 ALN N171 at N173 a document is incomplete if it not entire or not unqualified.
"Out of date"
39. The Shorter Oxford English Dictionary says something is “out of date” if it
“… continues to exist beyond its proper date or time; obsolete.”
The Concise Macquarie Dictionary defines “out of date” as
“Obsolete; no longer valid.”
40. In Re Wiseman it was held that information would not be considered out of date and therefore subject to amendment merely because it is old. Part V of the FOI Act should not be used as a means of rewriting history through continuous alteration.
"Misleading"
41. The Shorter Oxford English Dictionary defines “mislead” as
“To lead astray in conduct; to lead into error… To lead in the wrong direction.”
The Concise Oxford Dictionary defines it as
“Lead astray, cause to go wrong, in conduct or belief.”
The Concise Macquarie Dictionary defines “mislead” as
“To lead or guide wrongly; lead astray; to lead into error of conduct, thought or judgment.”
42. In Re Page “misleading” was said to mean (at N173)
“[L]eading astray, causing to go wrong, giving the wrong impression.”
43. One of the issues that I have had to consider in this matter is whether, in determining if a document is misleading, the test is purely objective or takes into account the document's likely audience. Mr Neely for the Department suggested that word "mislead" must be considered in the context of the class of persons who would have lawful access to documents, not the world at large. I accept this proposition.
44. I note that Mr Mitchell's evidence, that the abbreviation "Citz" would lead even a departmental officer to think Mr Mulder was a Dutch citizen in the 1980s, means that I do not need to decide this point to dispose of some issues before the Tribunal. The difficulty is with those documents containing the abbreviation "Ctry" rather than “Citz”.
Applicable criteria and collateral review
45. I also in passing want to mention two other passages that Mr Neely referred me to. The first is from Re Cox
“38. In an able submission, Mr Coppel, for the respondent… contended as follows…
…
6 In making the s.50(1) decision, the agency or on review the Tribunal should also have regard to:
- the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person;
- whether the record serves a continuing purpose;
- whether retention of the record in un-amended form may serve an historic purpose;
- whether the record is dated;
- whether amendment is being sought as a de facto means of reviewing another administrative decision;
- the extent to which access to the record is restricted;
- whether creation of the record or any of its contents was induced by malice.
- whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute.
…
41. The rejection in paragraph 39 above of Mr Coppel's first submission does not however necessarily deny altogether the utility of the criteria suggested by him and set out in subparagraph (6) of paragraph 38. The power to amend conferred by s.50(1) is specifically discretionary, and the suggested criteria may usefully be borne in mind both when considering whether the discretion should be exercised and when considering the form that should be adopted for its exercise should such exercise be decided upon.”
46. The second is a particularly apposite quote from the recent judgement in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]
“The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378.”
Amendment of Records
Deletion
47. Mr Mulder suggests the deletion of much information. Bearing in mind section 50(3), Re Cox, Re Wiseman and Re Searle (particularly at [38]) and the contrary view in Re Sime I do not agree, even if I found that some of these documents were incomplete, incorrect, out of date or misleading, that it would be generally appropriate to delete the material from the documents.
Amendments agreed to by the Department
48. The Department has agreed to annotate the documents at pages 19, 30-35, 40-43, 68, 69 and 71-73 of the T-documents. The annotation which the Department put forward was subject to certain further suggestions from the Tribunal and now reads as follows
“The Department is satisfied that Mr Mulder has at all times been an Australian citizen since 13 October 1977, and on advice of the Dutch Consul-General of 24 October 2000, did not have Dutch citizenship after acquiring Australian citizenship. As such Mr Mulder would not have been subject to any conditions, regarding his entry into and stay in Australia, which appeared on his Netherlands travel documents.”
49. The Department has also agreed that the documents at pages 67 and 68 should be amended by placing an asterisk next to the words "Indonesian father" and having a note on the left hand side of the documents which states
“* The citizenship application in fact states that Mr Mulder's father was born in Indonesia.”
50. Furthermore the Department agrees to correct the spelling of Mr Mulder's middle name to Denis on the file note on page 29, consistent with the amendment already made on page 72, even though this is not an amendment Mr Mulder had sought prior to these proceedings.
51. I am satisfied that as far as these matters are concerned, the note proposed would remove any suggestion that the records are incomplete, incorrect, out of date or misleading. I am prepared to make a decision along those lines in relation to these matters. Consistent with the view expressed in Re Cox I am also proposing that the note set out at paragraph 48 above be placed at the beginning of the file, that is the Department’s file 99/000918.
Other documents
Pages 20-26 and 51-66
52. These are documents from the Movement Records system. They are historical records of movements. They record the nationality on the passport or travel document presented when those movements were made. Mr Mulder objects to two aspects. Firstly, the abbreviation "Ctry" followed by the abbreviation "NETH". Secondly, the entry after "Lawful Until", which is "22/08/1991".
53. Mr Mitchell provided evidence that the abbreviation "Ctry" related to the nationality on the travel document or passport presented at the time of the travel. "Lawful Until" referred to the expiry date for the last visa on which the person had entered Australia. It did not refer to whether or not the person's residence in Australia, after that date, would still be lawful for any other reason – for example if the person had Australian citizenship or alternatively had been granted a new visa. That is, a "Lawful Until" entry relates to the date the visa expires and says nothing of the position after that date.
54. In my view there is no evidence that suggests that these documents are incomplete, incorrect or out of date. The question is whether they are misleading. That raises a further question of misleading to whom.
55. What then is the class that has lawful access to these documents? I refer to section 488 of the Migration Act 1958
“488 Tampering with movements records
(1) A person must not:
(a) read; or
(b) examine; or
(c) reproduce by any means; or
(d) use; or
(e) disclose by any means;
any part of the movement records, otherwise than in accordance with an authority given under subsection (2).
Penalty: Imprisonment for 2 years.
(2) The Minister may:
(a) authorise an officer to perform for the purposes of one or more of the following:
(i) this Act;
(ii) the Family Law Act 1975;
(iii) a law relating to customs or excise;
(iv) a law relating to quarantine or health;
(v) law enforcement;
(vi) the Education Services for Overseas Students Act 2000;
(vii) prescribed Commonwealth, State or Territory legislation;
one or more of the actions prohibited by subsection (1); or
(b) authorise an officer of the Attorney-General's Department to perform for the purposes of the Family Law Act 1975 one or more of those actions; or
(c) authorise an officer of Customs, within the meaning of the Customs Act 1901, to perform for the purposes of a law relating to customs or excise one or more of those actions; or
(d) authorise a quarantine officer, within the meaning of the Quarantine Act 1908, to perform for the purposes of a law relating to quarantine or health one or more of those actions; or
(e) authorise a member of the Australian Federal Police to perform for the purposes of law enforcement one or more of those actions; or
(f) authorise an employee of the Department whose Minister administers the Education Services for Overseas Students Act 2000 to perform for the purposes of that Act one or more of those actions; or
(g) authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for prescribed purposes one or more of those actions.
(3) Authority under subsection (2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only.
…”
56. Therefore the class of persons to whom access to these documents is available is limited. It is not the whole world. Although it is not limited to officers of the Department it is a much restricted class of people.
57. In my view such persons would not be led astray or given the wrong impression, either as to the meaning of the "Ctry" entries or the entry after "Lawful Until". For these reasons and noting the historical nature of these documents, I reject Mr Mulder's application to amend those aspects of these documents.
Pages 48-50
58. These documents are also from the Movement Records system but here the entry does not refer to “Ctry” but to “Citz”, followed by “NETH”.. Again, these are historical records. But I note Mr Mitchell's evidence that departmental officers could be misled by this entry into believing that the person was a Dutch citizen, even though in practice it relates to the country of the travel document.
59. I am not satisfied that this entry is incomplete, out of date or incorrect but I am satisfied that the entry is misleading. Therefore I propose that the note previously accepted by the Department (paragraph 48 above) should be added to each of these three pages.
Page 27
60. There has already been an amendment made to this document in the Department’s decision of 27 June 2002 (T9). It is not a total deletion as Mr Mulder requested and Mr Mulder complains that the amendment is hard to read. I must say that I had no difficulty reading it and I see no reason to amend it any further. I do not believe that the document is in any way, incomplete, incorrect, out of date or misleading following the amendment that has been made to it.
Page 28
61. Mr Mulder objected to a question mark on this page, saying it was ambiguous. I can see nothing implicit in that document other than that someone had a question. I do not think that it is appropriate to rewrite history by removing the question mark. The Department also queries whether the question mark is personal information, what could be done to correct it and what any amendment would show. I reject Mr Mulder's request in relation to this document.
Page 29
62. Mr Mulder’s complaint about the spelling of his name is accepted by the Department and is to be corrected (see paragraph 50 above). He also complained about the document’s legibility and that no author was recorded. He asserts the whole contents are false but submitted no evidence to establish that falsity.
63. In all those respects I reject his submissions, but I note that the document does include the words "Dutch citz". For reasons that I have already given, I believe this is a document which should be annotated with the agreed note set out at paragraph 48.
Pages 33-34
64. Although these were among the documents the Department agreed to annotate, a considerable amount of argument centred on these documents and in particular the following passage on page 33
“I also mentioned that Centrelink had advised Ms Gardiner that Mulder was difficult and was prone to jumping the counter. Mr Watson said that, in view of this, the alert should contain a warning - *"There are indications that this man should be treated with caution in any personal interview".”
I note in passing that this document is incomplete and I ask the Department to provide a full copy of the document to Mr Mulder.
65. Similarly there is Mr Mulder’s concern with the last sentence on page 34
“There are indications that this man should be treated with caution in any personal interview.”
66. Mr Mulder provided the Tribunal with a document purporting to be from Centrelink signed by one Andrew Chambers, EAT Leader Compliance, dated 27 December 2000 (Exhibit A6). The last paragraph is particularly significant
“Mr Mulder could be described as argumentative and overbearing, but I would not describe him as either offensive or threatening. Whilst Mr Mulder's interactions with staff have the propensity to make things worse (some staff have ignored his requests, as either too hard or to deliberately frustrated [sic] him) the fact is, he is a customer and we should provide him with a higher quality service than we currently do. Staff dealing with Mr Mulder would do well to try and see things from his point of view. Additionally, I have found face-to-face contact to be preferable to phone contact with Mr Mulder.”
67. Contrary to Mr Neely's submission, I believe that this is sufficient “for the applicant to get a case off the ground” as it was put by President Curtis in Re Mann (see paragraph 25 above). I refer also to Re Searle.. In my view Exhibit A6 is sufficient probative evidence to shift the onus requiring the Department to satisfy me that the document is not misleading, incorrect, out of date or incomplete.
68. The Department has not taken up the opportunity I gave by adjourning the hearing to provide any evidence on this matter. I find that it has not satisfied its onus. I am conscious that this matter includes opinion, and I note the requirements of section 55(6) and the comments of Senior Member Beddoe in Re Searle on its operation, but I find that the documents are misleading in this respect.
69. I propose the following amendments
· on page 33, that a line be drawn through the paragraphs beginning “I also mentioned...” and concluding “personal interview” (see the quotation at paragraph 64 above) and that a note be added
“The factual basis of this advice has not been established to the satisfaction of the Administrative Appeals Tribunal.”
· on page 34, that a line be drawn through the last sentence starting from “There are indications…” and concluding with “personal interview” (see the quotation at paragraph 65) and a note added
“The factual basis of this alert has not been established to the satisfaction of the Administrative Appeals Tribunal.”
Pages 35-39
70. I note that page 35 of the T-documents has already been subject to an amendment. Otherwise there is nothing in these documents or the evidence before me that suggests they are incomplete, incorrect, out of date or misleading. I reject Mr Mulder's claim. There is no evidence they are false or vexatious.
Pages 44-45
71. Mr Mulder wants to ensure that advice given to Centrelink is correct and suggests these documents are incomplete and vexatious. I find nothing in these documents that is incomplete, incorrect, out of date or misleading and I reject Mr Mulder's propositions. I cannot see how any amendment of these documents could help. Mr Mulder also raised certain queries that do not amount to a request to amend the documents.
Pages 46-47
72. Mr Mulder's original query in relation to these documents was not really an FOI request but he now claims that they are out of date or incomplete and vexatious. He appears to dislike the references to an investigation, or rather to the Investigations Branch, but in fact he fails to appreciate that page 47 strongly suggests no investigation occurred. I reject Mr Mulder's complaints.
Page 68
73. This document has already been amended in one respect (see paragraph 49 above), but Mr Mulder wants an amendment to that part of the document which says:
“Lutina said [above named] would be travelling illegally on a Dutch [passport] or they are allowed to have a Dutch [passport].”
74. This records a conversation with an official of the Dutch Consulate. I can see no basis and have no evidence before me that suggests that it is in any way incomplete, incorrect, out of date or misleading. I reject Mr Mulder's application.
Page 72
75. This document has been subject to some amendment already. Mr Mulder has objected to the annotation already on the document, saying that it is illegible. I reject that view. The other amendment he wishes to have is removal of the words "I think we have a PICS alert on this person".. Again, there is nothing in the document and no evidence before me that suggests this is incomplete, out of date, incorrect or misleading. I reject Mr Mulder's claim in relation to that aspect of the document.
Page 73
76. Mr Mulder objects to the handwritten amendment already made to this document. I reject his claim in relation to that. He also objects to the words “passport issued in error" and "We have included an alert on PICS".. There is nothing in this document and no evidence before the Tribunal that would suggest that in these respects the document is out of date, incomplete, incorrect or misleading. The phrase “passport issued in error” is in fact the last part of a question, not a statement of fact. I reject Mr Mulder's claim in relation to those aspects of that document as well.
Access to Documents
77. I now turn briefly to the question of access to documents raised in this application. Mr Mulder claimed that he had not been provided with access to documents referred to in the last paragraph of the document at page 30 (the same passage appears on pages 31 and 32 as well)
“I would appreciate your advice whether Mr Mulder declared in his passport application how and when he acquired Dutch citizenship. If he declared that he acquired Dutch citizenship subsequent to his acquisition of Australian citizenship, please advise if a determination of whether section 17 of the Act had operated was made.”
78. There is no evidence before me of any response to this request and the Department asserts that they have no document which could be characterised as such advice. I accept the Department's assertion in that respect and reject Mr Mulder's claim.
79. Page 70 of the T-documents refers to two folios, 117 and 118, that the Department asserted no longer existed (see T9 page 87). Following some discussion on the last day of the hearing I am reasonably satisfied that folios 117 and 118 have in fact been reproduced in the T-documents at pages 35 and 36. It is possible that page 36 in its previous incarnation as folio 118 did not include the note by Mr Marston dated 9.10.97, but I am reasonably satisfied that it is the document referred to at page 70. As Mr Mulder already has these documents there is no need to take the matter any further.
Other Observations
80. In an earlier matter involving Mr Mulder (Re Mulder and Department of Immigration and Multicultural Affairs [2001] AATA 545) Senior Member Sassella said at [60]
“It is unfortunate both that the Respondent retained no copy of the file as it was provided to the Applicant, and that the Applicant has adopted an attitude of cooperating as little as possible with the Respondent in furthering his FOI matters with that agency. The combination of these factors has made it more difficult to bring about any form of acceptable result in the case.”
81. I note in this particular matter that the Department has exercised less than due diligence in, amongst other things, providing documents to the Tribunal. Many of the documents as provided to the Tribunal and to Mr Mulder were incomplete photocopies, with parts cut off by lack of care in photocopying. This is obviously unsatisfactory when the Tribunal is dealing with an FOI request and in particular a request to amend records.
82. I believe the Department has shown less than due diligence in locating, as we seem to have now, folios 117 and 118 (see paragraph 79 above). I also note that the Department has recently found another file which, in previous proceedings before this Tribunal, its officers had sworn had been destroyed.
83. On the other hand, Mr Mulder's lack of cooperation with both the Department and the Tribunal is to be greatly deprecated.
Decision
84. The decision of the Tribunal is to vary the reviewable decision in the following manner
· the Department is to place at the beginning of file A99/000918 the note set out at paragraph 48 of these reasons
· the documents reproduced in the T-documents at pages 19, 29-35, 40-43, 48-50, 68, 69 and 71-73 are to have the same note added
· the documents at pages 67 and 68 are to have an asterisk placed next to the words "Indonesian father" and a note on the left hand side of the documents stating
"* The citizenship application in fact states that Mr Mulder's father was born in Indonesia."
· the document at page 29 is to have Mr Mulder's middle name correctly spelled as "Denis"
· the document at page 33 is to have a line drawn through the two paragraphs starting "I also mentioned" and to have a note added
"The factual basis of this advice has not been established to the satisfaction of the Administrative Appeals Tribunal."
· the document at page 34 is to have a line through the sentence commencing "There are indications" and a note added
“The factual basis of this alert has not been established to the satisfaction of the Administrative Appeals Tribunal.”.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed: .........(Trevor Mobbs)..................
AssociateDates of Hearing 21 October, 12 November, 28 November 2002
Date of Decision 28 November 2002
Date of Written Reasons 24 January 2003
Solicitor for the Applicant Self-represented
Counsel for the Respondent Mr Jim Neely
Solicitor for the Respondent Australian Government Solicitor
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