Rahman and Minister for Immigration and Multicultuaral and Indigenous Affairs
[2005] AATA 9
•7 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 9
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/561
GENERAL ADMINISTRATIVE DIVISION
Re: ROBIN SHEIKH SARWAR RAHMAN
Applicant
And: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND
INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 7 January 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefore the decision that the applicant’s date of birth be amended, in the relevant documents, to the 24 August 1980.
(sgd) E. A. Shanahan
Member
IMMIGRATION – Freedom of Information – Part 5 of the FOI Act – Amendment of date of birth – incorrect personal information – probative value of supporting material – close of discretion – s 50(1)
Freedom of Information Act 1982 ss 5, 48, 50, 51C
Mulder and Minister for Immigration and Multicultural Affairs [2002] AATA 1347 (28 November 2002)
Re Mann and Department of Health (ACT) (1994) 37 ALD 266
Re Cox and Department of Defence (1990) 20 ALD 499
REASONS FOR DECISION
7 January 2005 Miss E.A. Shanahan, Member
1. This is an application by Robin Rahman (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 10 March 2004. The delegate denied the applicant’s request to amend his personal record held by the Department of Immigration and Multicultural and Indigenous Affairs (the Department) to reflect his actual date of birth, being 24 August 1980, and not 24 August 1981, as it appeared in the records. The delegate of the respondent had denied the request under the Freedom of Information Act 1982 (the FOI Act) to amend this detail on the basis that the applicant’s supporting evidence and, in particular, his birth certificate from Bangladesh were not of sufficient probative value to convince the respondent that the existing record was incorrect. The applicant sought review by the Administrative Appeals Tribunal on 7 May 2004.
2. The applicant was self‑represented and the respondent was represented by Mr T. Fell, a solicitor with the Australian Government Solicitor. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15, the T-Documents) and a bundle of documents entitled Supporting Documents supplied by the applicant (A1) which included:
·an extract of birth certificate dated 5 May 1999;
·separate statutory declarations by the applicant’s parents, sworn on 21 August 2003;
·a driver’s licence and student card;
·a Learner Permit receipt;
·a Probationary Licence receipt;
·Class photographs from year 5 to year 12 from various schools;
·the applicant’s VCE Graduation Certificates;
·photocopies of birthday cards received on his 18th birthday, dated August 1998;
·21st birthday cards (photocopies), dated 24 August 2001;
·A 22nd birthday card sent on 17 August 2002;
·PAYG statements of 2002 and 2003;
·Tax return for 2002;
·a letter from Randwick Boys’ High School, dated 23 July 2004;
·a letter from Rainbow Street Public School, dated 5 August 2004; and
·a letter from Mt Waverley Secondary College, dated 13 July 2004.
3. The applicant and Dr S. Rahman, the applicant’s father, gave evidence at the hearing.
BACKGROUND TO THE APPLICATION
4. Mr Rahman claimed that as the result of an administrative error in Bangladesh in 1983 or 1984, his date of birth had been incorrectly entered on his immigration application and on his Australian citizenship documentation. The two documents record his date of birth as being 24 August 1981, rather than what he believes to be his true date of birth, 24 August 1980. Mr Rahman applied for an amendment of departmental records under the FOI Act on 21 July 2003. He subsequently provided further documentation in the form of a birth certificate, which was issued on 5 January 1999 in Bangladesh and statutory declarations from his mother and his father attesting to the date of birth as being 24 August 1980. The respondent refused the application for amendment on the basis that the departmental delegate was not satisfied that the current records were incorrect and that the details provided by the applicant, Mr Rahman, were likely to be correct. Mr Rahman was informed that it was possible to annotate the records to note what the applicant considered to be the correct information without amending the original information. The applicant chose to proceed to review of the decision before the Administrative Appeals Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
5. Mr R. Rahman said he had always believed his year of birth to have been 1980 and had celebrated his 18th birthday in 1998 and his 21st birthday in 2001. He had left Bangladesh as a small child, accompanying his parents to the United Kingdom (UK), where his father had obtained a Commonwealth scholarship in order to undertake a Doctorate of Philosophy. The family then migrated to New Zealand, and in 1990 to Australia.
6. He described the basic problem as being the incorrect entry of his date of birth on his mother’s passport issued prior to the family relocating to the UK. This passport had been used as documentation for immigration purposes to New Zealand and later Australia. Mr Rahman described the consequences of this as having a domino effect, with the error being perpetuated. While he said that there was no benefit to him having his date of birth altered to 1980, the correct date, he felt that he had a dual personality and that there could be difficulties in the future. He has recently completed his university studies and is now a practicing accountant. Mr Rahman felt that in the future he may wish to work overseas and the varying dates on documents had the potential to create problems in this area. His passport had in fact expired in 2003 and on application for a new Australian passport, it had been noted that the date of birth he entered, namely the 24 August 1980, did not coincide with that on his immigration and citizenship documents. As a result, he was given a temporary passport for 12 months only.
7. Mr Fell asked Mr Rahman how he had managed to get a driver’s licence and what documentation he had used in support of the application for a licence. Mr Rahman informed the Tribunal that his Bangladeshi birth certificate had been accepted by VicRoads. Mr Fell also asked Mr Rahman why he had not applied to have his Australian citizenship document amended. Mr Rahman said he had been unaware that a separate application would be necessary to change his citizenship certificate. The Tribunal notes that the citizenship certificate, the passport and the applicant’s Medicare records are said to show the date of birth as 24 August 1981. In contrast, the Bangladeshi birth certificate, Mr Rahman’s drivers licence, university records and various other professional memberships carry the date 24 August 1980.
DR S. RAHMAN
8. Dr Rahman advised that he had been offered a Commonwealth scholarship in the UK to undertake a Doctorate of Philosophy commencing in 1984. This required a lot of documentation for travel to the UK and for scholarship purposes. In July 1984, he had attended a Notary Public in Dakar in Bangladesh to swear an affidavit regarding his son, Robin. Dr Rahman stated that he wrote down the details including his son’s name and date of birth and this was subsequently typed in a formal document in the Notary Public’s office. Dr Rahman said that as he was extremely busy at the time he did not check to see that his handwritten instructions had been correctly transcribed to the official document. He admitted this was entirely due to his negligence.
9. In 1992 the Rahman family applied for Australian citizenship having been resident in Australia for two years. They were informed that they would need a copy of Robin’s birth certificate. At that time they could not afford to travel to Bangladesh in order to obtain the required documentation. In 1999, they did return to Bangladesh and arranged to obtain a birth certificate for the applicant. Dr Rahman and his wife attended the doctor who had delivered Robin (a home delivery), who apparently provided the necessary documentation and following which an extract from Register of Birth was issued by the Chief Health Officer of Dakar City, Bangladesh, dated 5 January 1999. This recorded Robin Rahman’s date of birth as 24 August 1980.
10. Under cross examination Dr Rahman stated that he had completed the affidavit of 27 April 1984 before his wife’s passport was issued. Mr Fell pointed out that in both the immigration application and the Australian citizenship application, the applicant’s date of birth had been entered 24 August 1981 and that Dr Rahman and his wife had signed the necessary declarations, declaring that all the information supplied was correct in every detail. Dr Rahman agreed that he had signed and understood this declaration and that false disclosure carried penalties, including deportation from Australia. With respect to the immigration application, Dr Rahman said that he had been instructed to enter data exactly as it appeared in the passport. While he had signed a declaration that the contents were correct in every detail, this had been a mistake but he argued that it was not deliberate.
11. The Tribunal asked Dr Rahman if he and his wife had copies of their birth certificates and had used those in their immigration and citizenship applications. He advised that they did not and that their dates of birth for these purposes had been taken on the date of birth declared on the school certificate when a child commenced school. This information had been accepted by the Australian government in both Dr and Mrs Rahman’s applications for immigration and citizenship. Dr Rahman explained there was no official Registry of Births in Bangladesh. Registration was not compulsory or encouraged and the vast population of the country and its relative poverty prevented the introduction of such a scheme.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
12. The applicant had provided a series of class photographs dated from 1991, when he was in year 5, and he claims aged 11, through to his year 12 class photograph, when he completed VCE. Three letters had been provided by the various schools that he had attended in New South Wales and Victoria which stated that on enrolment his date of birth was 24 August 1980. In addition there were copies of birthday cards received on his 18th birthday and dated 24 August 1998, 21st birthday cards dated in the year 2001 and 22nd birthday cards dated August 2002. The applicant had provided his tax return statements and PAYG certificates in the years 2002 to 2003 which stated his date of birth was 24 August 1980. The applicant’s learner permit and probationary drivers licence receipts carried the birth date of 24 August 1980 (Exhibit A1).
13. The T-Documents contained copies of the immigration applications of all family members and also the application for Australian citizenship. In all of these, Mr Robin Rahman’s date of birth is entered as the 24 August 1981. The T‑documents also contain his mother’s, Maksuda Easmin, passport extracts. This passport was issued on 13 April 1983 in the name of Maksuda Easmin and states there is one accompanying child named S K Sarwar Morshed, male, Date of Birth: 24 August 1981. The passport was originally issued from 13 April 1983 to 12 April 1988 and was subsequently extended until 12 April 1993 by the First Secretary of the Bangladesh High Commission in London. Both parents had supplied statutory declarations dated 21 August 2003, in which they declared that their son, Robin Sheikh Sarwar Rahman, was born on 24 August 1980 (T-11). Photocopies of the applicant’s driver’s licence and his undergraduate student card from Monash University were included at T‑15.
14. The respondent had referred Robin Rahman’s extract of birth to the Document Examination Unit of the Department. Mr P. Togan examined the extract of birth and made some enquiries from the Australian High Commission in Bangladesh and reported to the respondent on 2 March 2004. The Document Examination Unit in Melbourne expressed its ignorance of Bangladeshi extracts of birth and relied on advice from the Australian High Commission in Bangladesh. The Australian High Commission stated that, by and large, such documents are acceptable; but then commented that birth certificates are not worth much in Bangladesh and do not have the weight accorded them in Australia, as original documents. The High Commission did point out that there is no program of birth registration in Bangladesh. It would appear the Australian High Commission relies on data in previously issued passports or primary school attendance records. The latter is given weight because it has been issued earlier and not in the context of a migration application. The High Commission recommended the Document Examination Unit obtain a copy of the applicant’s primary school attendance record. The Tribunal notes that this would be impossible as, regardless of whether the applicant was born in 1980 or 1981, he would not be of school age in 1983. The Document Examination Unit concluded that, based on the advice from the High Commission in Bangladesh, limited weight should be placed on the birth certificate.
RELEVANT LEGISLATION
15. The FOI Act relevantly provides that s 48 states:
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.
Section 49 states:
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).
And s 50 states:
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.
SUBMISSIONS
16. The applicant submitted that his date of birth was 24 August 1980 and that due to an administrative error in Bangladesh it had been recorded on his mother’s passport as 24 August 1981. He wished to correct the date to prevent any future problems relating to travel or perhaps working overseas. He pointed out that his driver’s licence, his temporary passport and all his documents, other than his immigration application, citizenship application and Medicare card, carried his correct birth date of 24 August 1980.
17. The respondent conceded that the birth certificate is not a false document. It acknowledged that it is an official document but, in light of the comments made by the High Commission in Bangladesh, contended that not much weight can be placed on the veracity of such a birth certificate. In addition, the respondent contended that the evidence that the applicant’s date of birth of 24 August 1981 goes back to 1983, appears on his mother’s passport, immigration and citizenship documents and is thus inherently more reliable. Both parents had a previously sworn declaration with respect to the immigration and citizenship applications declaring these to be true and correct. The respondent concluded that either the parents had misled the authorities, or 1981 was the applicant’s year of birth.
18. Mr Fell referred the Tribunal to the decisions in Mulder and Re Mann where it was held that the onus fell to the applicant to provide material with the probative value that demonstrates an error in the Department’s records. The relevant factors when exercising the discretion to amend conferred by ss 50(1) were delineated in Re Cox and Department of Defence where Deputy President R. K. Todd listed the factors, as at 501:
4 … the “veracity” of all of the aspects of the claim …
…
(a)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;
(b)whether the record serves a continuing purpose;
(c)whether retention of the record in unamended form may serve a historic purpose;
(d)whether the record is dated
(e)whether amendment is being sought as a de facto means of reviewing another administrative decision
(f)the extent to which access to the record is restricted;
(g)whether creation of the record or any of its contents was induced by malice; and
(h)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.
APPLICATION OF THE RELEVANT LEGISLATION TO THE FACTS BEFORE THE TRIBUNAL
19. If the applicant’s date of birth is 24 August 1980 he has not been in any way responsible for the incorrect entries in official documentation which states his date of birth as 24 August 1981. If 24 August 1981 is incorrect, the responsibility for the error lies with the applicant’s parents and it would be unfair to penalise the applicant for their errors.
20. While there are obvious deficiencies relating to the extract of birth, it is the best possible evidence available to the applicant and to the Tribunal. The Tribunal does have some concerns regarding the letter of acquisition of the extract of birth given the evidence of Dr Rahman that he had first to obtain the statements in writing from the delivering doctor which formed the basis for provision of the birth certificate. In addition, Dr Rahman’s evidence before the Tribunal was conflicting in that he stated that his affidavit of 21 July 1984 was made before the issue of his wife’s passport. The Tribunal notes that Mrs Rahman’s passport was issued on 30 April 1983.
21. The relevant factors delineated by Deputy President R. K. Todd in Re Cox and Department of Defence are in the main not applicable to this review. The character of the record is essentially factual and serves a continuing purpose. The Document Examination Unit had found that the extract of birth was a genuine document, i.e. not a forgery, but was advised by the Australian High Commission in Bangladesh that such extracts of birth carried little weight. The High Commission in Bangladesh had recommended obtaining a date of birth from the applicant’s primary school enrolment form which was not appropriate given that the applicant was either two or three years of age when he left Bangladesh. He was not of school age at any time while living in Bangladesh.
22. There is no obvious benefit to the applicant resulting from the amendment of his date of birth from 1981 to 1980. However, it is obvious that the discrepancies in his date of birth in documentation that is widely used as proof of identity and required for things such as issuing passports, work permits and visas may, in the future, create difficulties.
23. While the Tribunal has reservations regarding the veracity of Dr Rahman’s evidence, the respondent did not explore the apparent conflict in his evidence referred to in paragraph 20.
24. Despite these reservations, the Tribunal finds it would be unfair to penalise the applicant for the actions of his parents and determines that the documents in question, mainly his immigration applications, should be amended to enter his birth date as 24 August 1980. He will need to apply for an amendment of his Citizenship of Australia certificate although the Tribunal notes the effect of s 51C regarding the Transfer of Requests.
I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Lake
ClerkDate of Hearing: 25 November 2004
Date of Decision: 7 January 2005
Solicitor for applicant: nil (self‑represented)
Solicitor for respondent: Mr T. Fell, Australian Government Solicitors
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