Re Bashari and Minister for Immigration and Multicultural Affairs
[2006] AATA 839
•2 October 2006
CATCHWORDS – FREEDOM OF INFORMATION ACT – amendment of date of birth – onus of proof – evidence of age – Evidence Act 1995 – exercise of discretion – decisions set aside.
Acts Interpretation Act 1901 s 33
Administrative Appeals Tribunal Act 1975 ss 29, 33, 37 and 43
Births Deaths and Marriages Registration Act 1996 (Vic) s 12 and 46
Broadcasting and Television Act 1942 (Cth) s 19
Evidence Act 1995, ss 73, 155 and 156
Freedom of Information (Fees and Charges) Regulations 2001
Freedom of Information Act 1982 ss 4, 15, 21, 30, 41, 48, 49, 50, 51A, 51C, 54, 55, 61 and 94
Freedom of Information Act 1989 (ACT) s 14
Migration Act 1958 s 501
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424
Australian Postal Commission v Burgazoff (1989) 10 AAR 296
Barker v Australian Telecommunications Commission (1990) 95 ALR 72
Carlton and United Breweries Ltd v Cassin [1956] VLR 186
Casarotto v Australian Postal Commission (1989) 10 AAR 191; 17 ALD 321
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 174 ALR 585
Commonwealth v Muratore (1978) 141 CLR 296
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Elleissy v Australian Telecommunications Commission (unreported, Federal Court, Hill J, No G836 of 1988, 14 July 1989)
Gribbles Pathology (Victoria) Pty Ltd v Minister for Health and Aged Care (2000) 106 FCR 1
McDonald v Director-General of Social Security (1984) 6 ALD 6
Ovens v Laneyrie (1987) 11 NSWLR 207
Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997)
Re Cox and Department of Defence (1990) 20 ALD 499
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dunn and Secretary, Department of Family and Community Services (2003) 75 ALD 220
Re Goitom and Minister for Immigration and Indigenous Affairs [2005] AATA 204
Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135
Re Mann and Department of Health (ACT)
Re Osmand; Bennett v Booty and Others [1906] VLR 455
Re Papak and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 513
Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410
Repatriation Commission v Smith (1987) 74 ALR 537
Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369
Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291; 61 ALR 319
The Queen v Hatim & Others [2000] NTSC 53
Wongatha People v State of Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483
Wytkin and Pope and Deputy Commissioner of Taxation (2003) 52 ATR 1001; [2003] AATA 171
DECISION AND REASONS FOR DECISION [2006] AATA 839
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/562
GENERAL ADMINISTRATIVE DIVISION )
Re MUSTAFA BASHARI
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
V2005/566
Re OMER BASHARI
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
V2005/568
Re MARIAM BASHARI
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 2 October 2006
Place: Melbourne
Decision:The Tribunal:
1.set aside the decisions of the respondent dated 28 May 2005 affirming earlier decisions dated 1 September 2004;
2.substitute decisions that:
(1)in proceedings No. V2005/562 relating to Mr Mustafa Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a) striking a line through, but not obliterating, the date of birth shown as 7 April 1984 wherever it occurs;
(b) writing in close proximity to that entry the date of birth “25 November 1986”; and
(c) writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006;
(2)in proceedings No. V2005/566 relating to Ms Omer Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a) striking a line through, but not obliterating, the date of birth shown as 3 February 1986 wherever it occurs;
(b) writing in close proximity to that entry the date of birth “28 December 1988”; and
(c) writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006;
(3)in proceedings No. V2005/568 relating to Ms Mariam Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a) striking a line through, but not obliterating, the date of birth shown as 3 February 1987 wherever it occurs;
(b) writing in close proximity to that entry the date of birth “28 December 1988”; and
(c) writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006.
S A FORGIE
Deputy President
REASONS FOR DECISION
A delegate of the respondent, the Minister for Immigration and Multicultural Affairs (Minister), has affirmed earlier decisions to refuse to amend the dates of birth of the applicants:
∙Mr Mustafa Bashari, from 7 April 1984 to 25 November 1986;
∙Mr Omer Bashari from 3 February 1986 to 28 December 1988; and
∙Ms Mariam Bashari from 3 February 1987 to 28 December 1988
in records held by the Department of Immigration and Multicultural Affairs (DIMA). The delegate made the decisions after not being satisfied that the decision was incorrect within the meaning of s 50 of the Freedom of Information Act 1982 (FOI Act). I have decided that the records should be amended.
THE ISSUES
There are three main issues in this case:
whether Minister has the burden of establishing that the decision under review was justified or that the Tribunal should give a decision adverse to the applicants, or any of them;
whether the information in records of personal information relating to the applicants, or any of them, is incorrect; and
if so, whether the Minister should exercise his discretion to amend the records.
In deciding those issues, there is also a question whether the Minister carries the onus of establishing that the decision made by her delegate is justified.
BACKGROUND
In this section I have made findings of fact relating to matters forming the background to the matters in issue between the parties.
On 11 April 1999, a form 80 headed “Personal Particulars for Character Assessment” (Personal Particulars form) was completed in relation to each of Mr Mustafa Bashari[1] and Mr Omer Bashari.[2] Mr Mustafa Bashari’s date of birth is shown as 7/04/1984 but the year appears to have been altered. The alteration appears from the fact that the box for the date of birth has been slightly obliterated and the “4” appears to have been altered from something else.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1995 (AAT Act) in relation to Mr Mustafa Bashari (TMB documents), 12-13
[2] Documents lodged under s 37 of the AAT Act in relation to Mr Omer Bashari (TOB documents), 9-10
On 9 July 1999, Mr Bashari’s mother, Mrs Nafisa Bashari, applied for a visa under the Migration Act 1958 (Migration Act) on refugee or humanitarian grounds.[3] I will refer to this as the visa application. Details of Mrs Bashari’s children were given in response to question 54 of her visa application. The date of births of her children were shown as: Homaira (14 August 1979); Omer (3 February 1986); Mariam (3 February 1987); Mustafa (7 April 1984); Sidiq (13 June 1992); and Faisal (13 June 1993).[4] The years of the dates of birth of Mustafa, Omer and Sidiq all appear to have been altered by the use of “white out” and the year written over the top. It appears that the sex of Mariam was originally marked as male as the block next to that word has been similarly altered by the use of white out.
[3] TMB documents, 15-29 and TOB documents, 11-32
[4] TMB documents, 29; TOB documents, 18; Documents lodged under s 37 of the AAT Act in relation to Ms Mariam Bashari (TMariamB documents), 17
Mrs Bashari wrote two undated letters to the Australian High Commission at Islamabad. In the first, she wrote, in part:
“There are some points that I want to inform you throug this letter.
(1):- Mustafa’s date of birth is 7.4/1984.”[5]
In a further undated letter, Mrs Bashari wrote to DIMA stating that:
“Mustafa’s date of birth is 7/4/1984. In the form 80 you has written – 7/4/87 which is incorrect. the real one is 7/4/1984.”[6]
[5] TMB documents, 10
[6] TMB documents, 14
Mrs Bashari’s visa application was granted on 3 June 2002 and she and her children were issued with a Document to travel to Australia (Travel Document).[7] That Travel Document gave details of the names and dates and places of birth of four of her children. Among them was Mr Bashari whose date of birth was shown as 7 April 1984. The family arrived in Australia on 29 July 2002.
[7] TMB documents, 37; TOB documents, 33; TMariamB documents, 32
Each of the applicants later lodged an application for amendment of DIMA’s records.[8] They stated that the dates of birth shown in DIMA’s records were incorrect and specified the correct dates as above.[9] Each attached to the application a copy of a birth certificate with a NAATI-accredited English translation as well as his statutory declaration.
THE EVIDENCE
[8] TMB documents, 38-42; TOB documents, 34-38; TMariamB documents, 33-37
[9] See [1]
Movements
In her visa application, Mrs Nafasi Bashari wrote that she had arrived in Pakistan on the first occasion on 11 August 1988 and on the second occasion on 22 February 1993.[10]
[10] TMB documents, 25; TOB documents, 21; TMariamB documents, 20
The documents
Apart from references to their dates of birth, the statutory declarations made by each of the applicants are in identical terms. Each explains that their uncle completed the visa application and the Personal Particulars form for them and made a mistake. At the time, they did not have any documents. Since then, a relative has been able to send them their birth certificates. In those birth certificates, their mother’s name is not shown. They explain that, in Afghanistan, only the name of a person’s father is shown. Their father’s name is Abdul Basir but, as he is not alive, his name is not mentioned in their visa applications.[11]
[11] TMB documents, 43; TOB documents, 39; TMariamB documents, 38
The birth record of each of the applicants is in similar terms. The dates of birth shown on each accorded with the statements made by the applicants. Rather than stating their birth date, though, each stated the age in the year of issue. The birthplace of each was shown to be Kabul. Their father’s name was shown but, although there was a space for their mother’s name, it was said to be “Not written”. The issuing authority was said to be the General Presidency of the Population’s Status Registration and the place of issue was marked as the Ministry of Internal Affairs. The date of issue of each birth is shown in the translation as a date converted to the Julian Calendar. Those for Mr Mustafa Bashari and Ms Mariam Bashari are dated 15 November 1989[12] and that for Mr Omer Bashari as 25 October 1992.[13] In giving oral evidence, Ms Homaira Bashari said that she could not explain why application for the documents had been made at different times. Her father had made the application and she did not know his reason for doing so. Birth certificates are not important in Afghanistan and the only time that they gain importance occurs when a boy turns 18 and has to undertake military service.
[12] TMB documents, 37; TMariamBdocuments, 36
[13] TOB documents, 41
Mrs Nafisa Bashari said that her husband had obtained the documents. Only a man could apply for such documents. She had managed to retrieve them from Afghanistan because, although they had lost their house, her sister had saved some of the documents.
The birth records, described as “Taskeras”, were sent to DIMA’s Document Examination Unit for examination. A report was prepared on 10 August 2004 regarding each of them and was in the same terms:
“I have examined the document referred to above and make the following observations:
-This document is similar to other questioned documents examined previously.
-The printing of the fixed text on the cover and internal pages has characteristics similar to screen print. The printing is also not of very high quality as shown by the off-centre placement of text on page 1.
-All personal data is handwritten in blue ink and there are no apparent alterations.
-There is no identity photo in the document.
-Aspects of the document, such as the colour of the cover and the general layout of the pages, conform to the information about documents issued during the communist era in Afghanistan.
CONCLUSION
Available information in relation to Taskeras suggests that the bogus versions are readily available and are also in circulation. This fact, combined with the lack of an authenticated comparative specimen as well as a question mark over the age and appearance of the document, makes a conclusive finding impossible to reach.”[14]
[14] TMB documents, 44; TOB documents, 40; TMariamBdocuments, 39
Each of the applicants also provided additional information under cover of letters in substantially the same terms.[15] The Document Examination Unit examined the documents in a group and reported that they included three school certificates with those relating to Mr Omer Bashari and Ms Mariam Bashari relating to time spent at kindergarten. In addition, there was a certificate of home birth by a midwife in relation to the birth of Mr Mustafa Bashari.[16]
[15] TMB documents, 51-65; TOB documents, 47-57; TMariamBdocuments, 46-56
[16] TMB documents, 56; TOB documents, 48; TMariamBdocuments, 47
The Document Examination Unit made a formal report regarding the documents:
“The above-mentioned document comprise three handwritten letters from the ‘Afghan Women Council Ariana High School’ which appear to be letters of introduction, a double-sided printed document in an Afghani dialect and three handwritten documents in an Afghani dialect.
All of these documents are very difficult to conclusively examine. Six of the documents are hand written in either English or in an Afghan language and they are “freehand” type documents and not completed pro-forma forms. The other is a pro-forma document but has little in the form of security features which could add credibility to the document.
I have examined the all of these documents and make the following observations:
The Letters of Introduction
The letterheads and foot notes on these documents are all offset printed. All three documents appear to be letter-headed stationery.
All personal information is handwritten, most probably by the same person using the same pen.
The letters are “authorised” by wet seal of the ‘Afghan Women Council – Ariana High School’. The same stamp is also placed over the photographs on each document.
The Handwritten Letters
These documents are basically not examinable. They are all universally obtainable A4 size paper and all the data is handwritten in an Afghani language. All bear wet seals of different types which may be significant but is impossible to tell.
Pro-forma-type Document
I do not know what this document relates to but it is a poor quality offset print with handwritten variable data.
Part of the pre-printed text on the reverse side of the document appears to be the year “138-” in the Solar calendar but the last printed digit is overwritten with the Arabic digit for ‘7’ so that the amended year is ‘1371’. This would indicate the document was printed in the decade after that to which the written information refers.
CONCLUSION
The “Letters of Introduction” and the handwritten Afghani letters are impossible to conclusive examine. As documents, they have no security features and are prepared on commonly available paper.
I am not sure what the third document is nor do I know whether the anomaly with the printed year is of significance. A complete translation may help in this regard.
It may also be impossible to check with the source for these documents and it may be fruitless anyway if the source is not an official body of some sort.
The examination is totally inconclusive.”[17]
[17] TMB documents, 66-67; TOB documents, 58-59; TMariamBdocuments, 57-58
There is a translation of the school certificate relating to Mr Mustafa Bashari. It shows that he was admitted to school on 5 October 1992 and his date of birth as 1986. The page showing his results showed his being in Grade One in 1992 and being promoted to Grade 2.[18]
[18] Translation attached to the letter from the Minister’s solicitors to the Tribunal sated 12 October 2005.
The neighbour
Mrs Farida Mashid gave evidence that she has known Mrs Nafisa Bashari since 1980. At that time, Mrs Mashid was living in Shashaheed, which is a suburb of Kabul. Mrs Nafisa Bashari’s sister, Zarmeena, was her neighbour at the time and the three would meet for tea each time Mrs Nafisa Bashari visited her sister. In 1988, Mrs Mashid said, Mrs Nafisa Bashari lived in Pakistan with her family but returned to Kabul to care for her sister, who was very ill. During her visit in 1988, Mrs Nafisa Bashari gave birth to Omar and Mariam. Mrs Mashid said that she was sure about the ages of the twins as she could recall Mrs Nafisa Bashari’s visit to Kabul coinciding with the celebrations 40 days after her, Mrs Mashid’s, niece’s birth. At this time, Mustafa was approximately two years of age.[19] Mrs Mashid’s niece is now 17 years of age.
[19] Exhibit A
Mrs Mashid could recall Mustafa’s being two years old at the time of the twins’ birth but could not recall the age of Ms Homaira Bashari at that time. She did not know how old the other children were. Ms Mashid could recall Homaira, who was a cute little girl and who was “may be about four years old”.
The family
Ms Homaira Bashari said that life had not been good for the family in 1986 when they had lost their father. Afghanistan was a bad place for girls as well as a bad place in economic terms. Their uncle was in Pakistan and later he moved to Australia. He sponsored the family to come to Australia. At the time, Ms Homaira Bashari said, her English was not very good and nor was her mother’s. Her mother confirmed that in her evidence and said that her daughter signed the visa application on her behalf. Mr Omer Bashari said that his sister signed the visa application because she was the eldest.
The dates of birth were shown in the visa application in the Julian calendar. Ms Homaira Bashari said that she now knows that they were shown incorrectly. At the time, neither she nor her mother could understand the dates that were shown. Mrs Nafisa Bashari said that she knew the Persian calendar but not the Roman calendar. Her brother had converted the dates from the Persian to the Roman calendar. He knew, she said, that Omer and Mariam were twins. He had put down the same day and month for their birth dates but had written different years. That was a mistake. Mrs Bashari’s mind was elsewhere as she had six children to care for and her eldest daughter was in danger as she was without a father and unmarried. All sorts of people asked for her daughter but she was still a child. They told her that if she did not give her daughter to them, they would take her by force and kill her other children. Ms Mariam Bashari confirmed that the family was under considerable stress at the time.
Mrs Nafisa Bashari said that she was dependent on her brother to complete the visa application and to convert the dates. He knew that Omer and Mariam were twins. It is her view that he made a mistake when he wrote their birth dates on the visa application.
Ms Homaira Bashari said that she changed the date of birth of her brother, Mustafa, by writing to the Australian High Commission in Islamabad. Her mother said in giving evidence that she could not recall her daughter doing so. Ms Homaira Bashari said that she did so because she knew that Mustafa was two years older than Omer. A friend helped her to do that but, despite that, she did not understand the Julian calendar at the time. All she knew was that Mustafa was two years older than Omer. Ms Homaira Bashari said that she knew that because she was about eight years old when Omer was born. Her mother was sick and her father brought the midwife to their home. Ms Homaira Bashari said that she was not allowed in the room for the birth but she was, in accordance with tradition, given a gift after it. She was given chocolate for the birth of her brother and sister. As the eldest child, Ms Homaira Bashari said that she had to help her mother look after the babies. At the time, Mustafa was about two years old and walking.
Ms Homaira Bashari said that she could not remember the dates of birth of her brothers and sisters and make the calculations between the Persian calendar and the Julian calendar. They do not celebrate birthdays, she and her brother Mustafa said, and they did not refer to dates of birth before they came to Australia. All that she would know was the number of years between them in their ages.
Ms Homaira Bashari could not explain why she had not notified the Australian High Commission of the error in Mariam’s date of birth when she notified the error in Omer’s. Her uncle had completed the forms and she just signed them on behalf of her mother. She had not gone through them to check for mistakes made by her uncle. At that time, she was studying English in Pakistan but was only at the beginner level. She did not know how to speak it then. At the time, she had not known how to convert a date from the Persian calendar to the Julian calendar and she still does not know.
Ms Mariam Bashari said that her incorrect birth date caused her difficulty. She is regarded as older than she is and she does not have the experience of a person of that age. Some job opportunities depend on age and she is not able to get them. Without having her details changed, her friends think that she is lying about her age. When a school immunisation programme was only available to those 16 years or under, she was not able to participate as she was told that she was 18 years of age and not 16.
LEGISLATIVE BACKGROUND
The amendment of documents containing personal information
Part V of the FOI Act is concerned with the amendment and annotation of:
a document of an agency or an official document of a Minister;
to which access has been lawfully provided to the person either under the FOI Act or otherwise;
which contains personal information about a person;
that is incomplete, incorrect, out of date or misleading; and
that has been used, is being used or is available for use by the agency or Minister for an administrative purpose.
The person who is the subject of the personal information may apply to the agency or Minister for an amendment or annotation of the record of that information kept by the agency or Minister. That is the effect of s 48 of the FOI Act. In the case of an amendment, the application must comply with s 49 and, in an application for an annotation, it must comply with s 51A. There is no question that the applications in this case comply with the requirements of both sections but the focus of the hearing was upon the amendment of DIMA’s records.
Section 50 is concerned with the amendment of personal records. It is divided into two parts. The first is concerned with the occasions on which an agency or Minister may amend a record of information. The second is concerned with the manner in which the agency or Minister may make the amendment.
Returning to the first part, it provides that:
“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 that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister for an administrative purpose.”
Section 51C is concerned with the transfer of an application for amendment or annotation to another agency or Minister but is not relevant in this case.
Section 50(2) is concerned with the way in which an agency or Minister may make an amendment:
“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.”
The power given to the agency or Minister is qualified by s 50(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.”
CONSIDERATION
Does either party carry a burden of proof?
Generally, neither party carries either burden of proof when the Tribunal reviews an administrative decision and there is no presumption that the decision under review is, or is not, the correct or preferable decision. This follows from the general principles in s. 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act) that the Tribunal is to put itself in the same position as the person making the decision under review. The general principles were set out in McDonald v Director-General of Social Security:[20]
“There is certainly no legal onus of proof arising from the fact that this is an ‘appeals’ tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with; Re Ladybird Children's Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator's decision is correct. This is clearly the right approach to the matter.”[21]
Woodward J went on to recognise that the general position could be altered by Parliament:
“It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT.”[22]
[20] (1984) 6 ALD 6
[21] (1984) 6 ALD 6 at 10 per Woodward J
[22] (1984) 6 ALD 6 at 10 per Woodward J
This is case in which Parliament has chosen to make provision for an onus of proof. Section 61 of the FOI Act provides that:
“(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.
(2)In proceedings under section 58F, 59 or 59A,[[23]] the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.”
[23] Relating to the review of certain decisions in respect of documents relating to the Government of a State and certain decisions in respect of documents relating to business affairs and the like and containing personal information.
In the past, the Tribunal has taken the view that s 61 imposes a burden of proof on the Minister or agency in proceedings under Part V of the FOI Act.[24] Only the Tribunal in Re Dunn and Secretary, Department of Family and Community Services[25] analysed the requirement of s 61 and its relationship with s 55(6) of the FOI Act. I will return to that analysis shortly.
[24] See, for example, Re Dunn and Secretary, Department of Family and Community Services (2003) 75 ALD 220 at 228, Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369 at 372 and Wytkin and Pope and Deputy Commissioner of Taxation (2003) 52 ATR 1001; [2003] AATA 171 at [41]
[25] (2003) 75 ALD 220
I will begin with the place of s 61(1) in the FOI Act. It falls within Part VI, which is concerned with the review of decisions made under it. Decisions made by Ministers or agencies under Part II are concerned with making certain information available to the public about their functions and documents and making material such as manuals and guidelines available for inspection and purchase. This is quite apart from the documents that must be made available in response to a request for access to a document under s 15 of the FOI Act. Decisions relating to the way in which a Minister or agency carries out the requirements of Part II may not be reviewed. That follows from the fact that they are not decisions that are specified in s 55 and so not decisions that may be reviewed by the Tribunal.
Decisions made under Parts III, IV and V are in a different category. They all relate to a request for access to document of an agency or an official document of a Minister. A person who wishes to obtain access to such documents may request access to them.[26] The request must comply with s 15(2).
[26] FOI Act, s 15(1)
Part III is concerned with the more procedural aspects of making a request for access to a document of a Minister or an agency and the processing of that request. Part IV sets out the grounds on which a Minister or an agency may refuse a request for access to a document on the basis that it is an exempt document. Part V is concerned with the amendment and annotation of personal records. Provision for the review of particular decisions made under those Parts is the subject of s 55.
Section 55(1) provides for their review in this way:
“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 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 actually granting that access; or
(b)a decision to defer the provision of access to a document; or
(c)a decision refusing to allow a further period for making an application under s 54(1) for a review of a decision; or
(d)a decision under s 29 relating to the imposition of a charge or the amount of a charge; or
(e)a decision under section 30A relating to the remission of an application fee; or
(f)a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g)a decision refusing to amend a record of personal information in accordance with an application made under s 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.”
Three of the remaining six sub-sections of s 55 go on to qualify the right to make an application given by s 55(1). So, for example, ss 55(2) and (3) qualify the right where a person is entitled to make an application for internal review under s 54. Section 55(4) qualifies the time allowed by s 29 of the AAT Act for the making of an application. Sections 55(5), (5A) and (6) qualify the Tribunal’s powers to make a decision in reviewing certain decisions. The first two expressly give the Tribunal power to require the agency or Minister concerned to conduct further searches for a document in certain circumstances. The last, s 55(6), qualifies the Tribunal’s power when reviewing a decision refusing to amend a record of personal information in accordance with an application made under s 48 i.e. a decision of a kind mentioned in s 55(1)(g). I will return to that shortly.
The language used in each of the paragraphs in s 55(1) falls into several categories. In the first three, ss 55(1)(a), (aa) and (ab), the decision is clearly linked to a “request” for access to a document. Although there is no express reference to such a “request” in the fourth, s 55(1)(b), and in the eighth, s 55(1)(g), the reference is implicit. A decision to defer the provision of access referred to in s 55(1)(b) must relate to a decision under s 21. Express reference is made in s 55(1)(g) to s 41(3). Section 41(3) provides for disclosure of certain information affecting personal privacy to a third party where “a request is made … for access to a document”. Such a decision is made after a Minister or agency has received a “request” for access to a document. Similar reasoning leads to the conclusion that the decisions referred to in ss 55(1)(d) and (e) (f) must also be implicitly linked to a “request”. Charges may only be imposed under the Freedom of Information (Fees and Charges) Regulations 2001 (Charges Regulations). Those Charges Regulations are made in accordance with the power given by s 94(1) to make regulations “in respect of requests for access to documents or in respect of the provision of access to documents”. Although s 30A refers to “an application … requesting access to a document”,[27] the focus continues to be on that request.
[27] Emphasis added
Three of the decisions described in s 55 do not relate, expressly or implicitly, to a request for access to a document. The first is s 55(1)(c). It provides that an application may be made for review of a decision refusing to allow a further period for making an application under s 54(1) i.e. an application for the internal review of a decision. The other two are found in s 55(1)(g) and (h). They are decisions that relate to an “application made under s 48” i.e. an application to amend or annotate a record of personal information and so an application made under Part V of the FOI Act.
The variation in language in s 55 appears quite deliberate. A request for access to a document is quite different from an application for amendment or annotation. After all, an application for amendment or annotation may be made in respect of a document that has already been lawfully provided to the person. It might have been lawfully provided under the FOI Act or otherwise. A request for access to a document is for a document that the person presumably does not have or, at least, does not lawfully have. An application in respect of a decision refusing to allow a further period for making an application under s 54(1) is a step removed from a request for access to a document. After all, it follows a decision on a request for access to a document. It is not a decision in respect of a request for access to a document but in respect of an extension of time for making an application for review.
The distinction is continued in s 61(1). That section does not refer to a decision relating to “an application made under s 48” or to a decision refusing an extension of time but to a “decision given in respect of the request”. It does not refer to the agency or Minister to which or to whom an application was made under s 48 but to the agency or Minister to which or to whom the request was made. The same is true of s 61(2). It refers to access being given to a document in accordance with a request. Again, there is no reference to an application under s 48. The fact that there is no reference to s 48 or to an application, strongly suggests that the onus provisions are not intended to apply to a decision regarding an application under s 48. A similar argument could be made out in respect of a decision refusing to extend the time to make an application under s 54(1). The distinction that I have drawn is underlined by the definition of “request” in s 4(1):
“request means an application made under subsection 15(1)”.
There is no reference to an application of the type referred to in s 48. An application under s 48 is not an application under s 15(1).
In view of this analysis, it seems to me that s 61 does not impose a burden of proof upon a Minister or agency. That means that there is a difference between the Tribunal’s review of decisions made under Parts III and IV on the one hand and under Part V on the other. The difference has a sound basis. Decisions made under Parts III and IV are reviewed in circumstances in which little of the information relevant to the decision can be expected to be readily known to the person requesting access to the document. By way of contrast, decisions regarding whether information in records of personal information is correct or not are reviewed in circumstances in which relevant material may be in the custody or knowledge of many including the applicant for review.
Should I alter my view in light of s 55(6) of the FOI Act? It provides that:
“The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g) [to refuse to amend a record of personal information in accordance with an application under s 48], make a decision that requires, or has the effect of requiring, an amendment to be made to a record it is satisfied that:
(a)the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b)the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); 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.”
Mr Wee relied on a decision of Deputy President Hotop in Re Boyd and Health Insurance Commission[28] (Boyd) to support his further submission that an onus will not arise under s 61 unless an applicant produces material of a probative value showing some relevant defect in the document. Deputy President Hotop said:
“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...’.”
[28] (AAT 11870, 19 May 1997)
A similar point was made in Re Dunn and Secretary, Department of Family and Community Services, the Tribunal referred first to s 61 and then to s 55(6) in these terms:
“(47) However, s 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.
(48) 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 s 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 s 55(6) applies to preclude amendment once the applicant has raised a prima facie case to the contrary.”[29]
[29] (2005) 75 ALD 220 at 228
Although I understand the need to strive for consistency among the Tribunal’s decisions,[30] that need should not be at the expense of striving to ascertain the law that is applicable in a particular case. Regretfully, I am unable to agree with the Tribunal in Re Dunn and Secretary, Department of Family and Community Services or the reasoning in Re Mann and Department of Health (ACT)[31]. Certainly, s 71 of the Freedom of Information Act 1989 (ACT) is drafted in very similar terms to s 61. Like s 61(1), it imposes on the decision-maker an “onus of establishing that a decision given in respect of the request was justified”. It defines a “request” as “… an application made in accordance with section 14 (1)”. Section 14(1) mirrors s 15(1) of the FOI Act in providing that a person who wishes to obtain access to a document may request access to that document. Neither s 14(1) nor the definition of a ‘request” makes any reference to an application to amend personal records. President Curtis did not analyse these provisions and seems to have assumed that the onus applied. Although most reluctant to disagree with his conclusion, albeit on different legislation, I must do so on the understanding that I have of the provisions.
[30] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J as President of the Tribunal
[31] (1991) 37 ALD 266
As far as Boyd is concerned, it seems to me that it is simply stating the practical point made by the Full Court of the Federal Court in McDonald v Director‑General of Social Security.[32] Woodward J considered whether there was an evidential onus on the Director-General of Social Services to satisfy himself that there had been a change of circumstances before cancelling Mrs McDonald's invalid pension. In doing so, he said:
[32] (1984) 6 ALD 6
“ The provisions of the Social Security Act 1947 under which the Director-General could have reviewed the applicant's pension in the present case are ss 14 and 46(1). Section 14 reads:
‘Whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.’
Section 46(1) reads:
‘If,
(a) having regard to the income of a pensioner;
(b) by reason of the failure of a pensioner to comply with section 44 or 45; or
(c) for any other reason,
the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended ... the Director-General may cancel or suspend the pension ... accordingly.’
Whichever provision the Director-General chooses to act under, (and in this case, although it is not entirely clear, he seems to have purported to act under s 46(1)), if he is of the opinion that a person is not, or is no longer, permanently incapacitated, he has both a right and a duty to terminate that person's pension. In doing so he must act in good faith on the information available to him, but no question of onus arises.
In my view, the answer is the same when the AAT seeks to put itself in the position of the Director-General. It must act on the material which is before it but, as I have already pointed out, it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn - but it is not helpful to categorize this common sense approach to evidence as an example of an evidential onus of proof.
The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.”[33]
[33] (1984) 6 ALD 6 at 10-11
McDonald’s case has been considered and applied in a number of cases arising in the compensation jurisdiction of the Tribunal: Australian Postal Commission v Burgazoff;[34] Elleissy v Australian Telecommunications Commission;[35] Barker v Australian Telecommunications Commission;[36] Casarotto v Australian Postal Commission;[37] and Commonwealth v Muratore.[38] It has also been followed in other jurisdictions including the Tribunal’s broadcasting jurisdiction. The Full Court of the Federal Court considered s 19(2) of the Broadcasting and Television Act 1942 (Cth) in Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal.[39] That subsection provided that the Australian Broadcasting Tribunal could make certain directions where it was “satisfied that, by reason of the confidential nature of any evidence or matter or for any other reason, it is desirable that the Tribunal should” give such directions. The Full Court said:
“We agree with the submission that it is not appropriate to approach s 19 on the basis that an onus of proof is cast upon a party seeking directions under subs (2). As was pointed out by a Full Court of this Court in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357, 368-369, it will rarely be appropriate to speak in terms of onus of proof in relation to the making by an administrative tribunal of a decision pursuant to a statutory discretion. In the present case s 19(2) provides that the Tribunal shall make directions in relation to confidentiality where it 'is satisfied that' it is desirable that it should do so. The Tribunal may reach that state of satisfaction by reason of matters put before it by a person seeking a direction under the subsection. It may reach that state of its own motion and by reason of the content of the relevant material. There is, in the strict sense of the word, no ‘onus’ on any one.”[40]
This judgement was followed by a differently constituted Full Court of the Federal Court in Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd.[41]
[34] (1989) 10 AAR 296
[35] (unreported, Federal Court, Hill J, No G836 of 1988, 14 July 1989)
[36] (1990) 95 ALR 72
[37] (1989) 10 AAR 191; 17 ALD 321
[38] (1978) 141 CLR 296
[39] (1985) 8 FCR 291; 61 ALR 319
[40] (1985) 8 FCR 291; 61 ALR 319 at 297; 324
[41] (1989) 86 ALR 424 at 432
The principles are equally applicable to the interpretation of the FOI Act. On its face, s 55(6) does not impose any particular burden of proof on a person, evidential or otherwise. Its requirement that the Tribunal must not decide to make an amendment if it is satisfied of certain matters does not impose such a burden. In that regard, it is in the same category as s 501(2)(a) of the Migration Act 1958. I considered that in Re Papak and Minister for Immigration and Multicultural and Indigenous Affairs,[42] and contrasted it with s 501 of that legislation which I consider does impose a burden of proof upon an applicant:
“37. … Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the ‘person does not satisfy the Minister’ that he or she passes the character test. This is to be contrasted with a provision such as s. 501(2)(a), which provides that the Minister may cancel a visa if ‘the Minister reasonably suspects that the person does not pass the character test’. That provision is quite neutrally stated as to burden and none arises. Just as the Director-General of Social Services in McDonald v Director-General of Social Services had ‘… both a right and a duty to terminate that person’s pension …’ if he formed the opinion that a person was not, or was no longer, incapacitated for work and ‘… in doing so he must act in good faith on the information available to him …’ (per Woodward J, at 11), so too must the Minister cancel a visa if he reasonably suspects that the person is not of good character. The Director-General of Social Services, or his successor, the Secretary of the Department of Family and Community Services, must form their views of a person’s incapacity or otherwise and the Minister must form his view as to what he suspects on the material before him. That material may be put before him by the person seeking to gain or retain the pension or visa or it may be put before him as a result of his own enquiries. In stark contrast, the language of s. 501(1) places a burden upon a person who seeks a visa. If he or she does not satisfy the Minister, the Minister may refuse the visa if he chooses to do so.”[43]
[42] [2003] AATA 518
[43] [2003] AATA 518 at [37]
Applying the reasoning in McDonald v Director-General of Social Services to s 55(6), I have concluded that it does not impose any onus of proof on a Minister or agency. The Tribunal is to reach its decision on the material before it. That material may be introduced by either or both of the parties or, provided it observes the rules of procedural fairness, the Tribunal itself.
Section 55(6) does not alter my conclusion regarding s 61. I do not consider that it imposes a burden of proof on the Minister or an applicant and nor does s 61 when reviewing a decision refusing to amend a record of personal information in accordance with an application made under s 48.[44]
[44] I note that, at first glance this conclusion does not appear to accord with that reached by the Administrative Decisions Tribunal of New South Wales (ADT) in Hayward-Brown v CEO Wentworth Area Health Service [2000] NSWADT 46 at [38] (Hayward-Brown) per Hennessy DP in relation to s 61 of the Freedom of Information Act 1982 (NSW). The ADT’s decision was referred to by the New South Wales Court of Appeal in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 in support of the proposition that:
Are DIMA’s records incorrect?
Section 50 gives the Minister power to amend a record of information if it meets the criteria specified in s 50(1). Of those, the only criterion in question is one of those specified in s 50(1)(b): whether the information is “incorrect”. As Sir William Prentice, Senior Member, Dr Renouf and Mr Taylor, Members said in Re Leverett and Australian Telecommunications Commission:[45]
“If the adjective ‘incorrect’ needs amplification, it may be perhaps allowed in the Concise Oxford Dictionary’s ‘not in conformity with a recognised standard, faulty; not in accordance with fact, erroneous, inaccurate’. …”[46]
Twenty years later, there has been nothing to suggest to me that this is not the correct interpretation of the word.
[45] (1985) 8 ALN N135
[46] (1985) 8 ALN N135 at N136
Cases such as these are not easy. The records are not of a sort commonly seen in Australia. They come from another country where, on the evidence available to me, it appears that births are not recorded shortly after they occur or necessarily at all. Ms Homaira Bashari said, there is no emphasis placed on a person’s birthday in Afghanistan. I accept that and it is a lack of emphasis to be found in other cultures e.g. the Chinese culture. Lack of records is contrary to the situation in Australia where State and Territory legislation requires births to be notified to a person such as the Registrar of Births, Deaths and Marriages within quite short periods of time.[47] There may be reasons for that. The fact that I do not know the reasons for there being no obligation to record dates of birth that occur in a particular country does not of itself mean that any ancillary records that are produced to support a claim as to a person’s correct date of birth should not be accepted.
[47] e.g. Births Deaths and Marriages Registration Act 1996 (Vic), s 12
Even if their births had occurred in Australia, there can be occasions when they have not been recorded and regard cannot be had to a birth certificate. Although hearsay, a birth certificate is an exception to the rule against hearsay and is admissible as evidence in a court of the facts that it contains.[48] Although not bound by the rules of evidence,[49] the evidence that would otherwise be admissible in a court to determine a birth date is a useful guide in determining how I should decide what is correct or not correct in this case.
[48] e.g. Births Deaths and Marriages Registration Act 1996 (Vic), s 46(2) and see also Evidence Act 1995, ss 155 and 156 regarding the admissibility of official records and public documents respectively.
[49] AAT Act, s 33(1)(c)
Direct evidence of a person who was present at the birth of a person is admissible. In addition:
“… evidence of inspection and subsequent opinion as to age is admissible is well-established: see, eg, Phipson on Evidence, 11th ed (1970) par 286 at 127 and par 1319 at 529 and R v Cox [1898] 1 QB 179.
In Wallworth v Balmer [1966] 1 WLR 16; [1965] 3 All ER 721, the Court of Appeal held there was evidence of persons to whom liquor had been supplied being under age when that evidence was purely visual. Lord F Parker CJ said (at 18; 723):
‘I am quite satisfied that there must be evidence of age, but I am also satisfied that there need not be oral evidence, but there can be visual evidence from the youths themselves.’
The Chief Justice went on (at 19; 723):
‘It seems to me there may be some cases where the facts speak for themselves in the sense that the youth or child is obviously under 18.’
Once such evidence is accepted, there must be the possibility of genuine error of opinion and such error can obviously occur as to whether people are over a certain age as well as to whether they are under it. …”[50]
So too is scientific evidence of a person’s age admissible evidence.[51]
[50] Ovens v Laneyrie (1987) 11 NSWLR 207 at 209
[51] The Queen v Hatim & Others [2000] NTSC 53 per Thomas J at [19]
As there can be no independent recollection of the event, a person’s evidence as to that person’s own age is regarded as hearsay and so inadmissible.[52] It follows that a person’s own evidence that he or she is a twin of another must be regarded in the same way. In a court or tribunal that must apply the rules of evidence, s 73(1) of the Evidence Act 1995 (Evidence Act) provides for an exception to the rule against hearsay:
“The hearsay rule does not apply to evidence of reputation concerning:
(a) whether a person was, at a particular time or at any time a married person; or
(b)whether a man and a woman cohabiting at a particular time were married to each other at that time; or
(c) a person’s age; or
(d)family history or a family relationship.”
[52] Ovens v Laneyrie (1987) 11 NSWLR 207
This section was considered by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8):[53]
“The genesis of the provision is the common law ‘evidence of pedigree’ exception to the rule excluding hearsay evidence: see the New South Wales Law Reform Commission’s ‘Report on the rule against hearsay’ (NSWLR 29 (1978) at par 47.11, and the Australian Law Reform Commission’s interim report on Evidence (ALRC 26), Recommendation 12(c)(iv), and vol 1, [110]; and that Commission’s final report (ALRC 38) s 64 and [129]).
85 Section 73(1) has been briefly considered in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 55; Day v Couch [2000] NSWSC 230 and Ceedive Pty Ltd v May [2004] NSWSC 33.”[54]
[53] [2004] FCA 338; (2004) 207 ALR 483
[54] [2004] FCA 338; (2004) 207 ALR 483 at 499; [84]-[85]
A similar principle was applied by Sholl J in Carlton and United Breweries Ltd v Cassin.[55]His Honour considered whether a marriage certificate stating the age of the husband at the date of his marriage could be used as proof of his age. He compared it with a death certificate that had been considered by Cussen J in Re Osmand; Bennett v Booty and Others:[56]
“… Cussen J at pp. 474 and 475, held that a certificate of death was prima facie evidence of the age of the deceased stated therein. That decision appears to me to go the whole distance that the plaintiff seeks to go in the present case.”[57]
[55] [1956] VLR 186
[56] [1906] VLR 455
[57] [1956] VLR 186 at 191
Apart from s 73(1), regard need also be had to s 156 of the Evidence Act. It provides that evidence of a document that purports to be a copy of, or an extract from or summary of a public document and to have been sealed with a seal of the person or body reasonably supposed to have custody of that document is presumed to be such a copy unless proved to the contrary.[58] If the document is certified to be such a copy by a person who might reasonably be supposed to have its custody it is treated in the same way.[59] A “public document” is defined in terms that include documents forming “… part of the records of the government of a foreign country”.[60] In this case, there is insufficient evidence for me to make a finding as to whether any of the documents could be regarded as a copy of, or an extract of, a record of the government of Afghanistan.
[58] s 156(1)(a)
[59] s 156(1)(b)
[60] Evidence Act, Dictionary, Part 1
These principles reveal that, even though the rule against hearsay does not apply, there must be some degree of probative value in the evidence that is relied on in determining a person’s age and so date of birth. In this case, there is the direct evidence of their mother that Ms Mariam Bashari and Mr Omer Bashari were born at the same time and so are twins. That is supported by the evidence of Mrs Mashid who said that she lived next door to the residence at which Mrs Bashari gave birth. It is also supported by the evidence of Ms Homaira Bashari, who was a child at the time. She said that she clearly recalled the event because of the gift that was given to her after their birth. There is a slight discrepancy between the evidence of Mrs Mashid and that of Ms Homaira Bashari as Mrs Mashid seemed somewhat vague about her presence in Kabul at the time of the birth but did remember, Mr Mustafa Bashari.
The fact that the applicants’ uncle did not complete the visa application correctly is perhaps understandable. It may be understandable that relatives who are not part of the immediate family unit may make mistakes regarding matters such as birth dates. What is more difficult to understand is why Ms Homaira Bashari corrected the birth date of her brother, Mustafa, but did not correct the birth dates of Mariam and Omer. One reason is based in the differences between the Persian and Julian calendars. I do not know whether she had a copy of the visa application to check those dates after she had signed it.
The evidence of the school certificates is equivocal when taken alone. On their face, they appear to support the arguments put forward by the applicants. Against my reaching that conclusion are the changes to the dates of birth noted by the Document Examination Unit. The evidence of the birth records is a little different. The Document Examination Unit concluded that a conclusive finding was impossible to reach as to their authenticity but I must remember that I am not trying to make a conclusive finding as to whether DIMA’s documents are incorrect. I have only to be “satisfied” regarding the answer to that question. I will be satisfied if I conclude that they are incorrect on the balance of probabilities.[61] The authenticity of the documents must be regarded in the same light and as part of the evidence rather than the whole of the evidence.
[61] Repatriation Commission v Smith (1987) 74 ALR 537 at 546 per Beaumont J
The report of the Document Examination Unit’s report questions the authenticity of the birth records largely because of the ready availability of bogus records and the lack of availability of an authenticated version against which to check them. Putting those two matters to one side, it is apparent from its report that the birth records had the appearance of authentic documents on their face.
The birth records show the dates of birth of Ms Mariam Bashari and Mr Omer Bashari as the same day. They are consistent with the evidence of the three school certificates. They are also consistent with the evidence given by members of the Bashari family. Again, and understandably, the report of the Document Examination Unit is inconclusive.
There are difficulties in this case. At one level, the Minister has issued the Bashari family with visas on the basis of, or at least partly on the basis of, the information in the visa application. That information is given in a language with which Mrs Bashari and her children were not familiar at the time. There is no evidence that there have been any other enquiries made by DIMA at the time the visa application was made to check the birth dates given in the visa application or subsequently. There has been an attempt since when DIMA obtained a letter from the Malalai Zezhantoon Hospital stating that a person with Mrs Bashari’s name gave birth to a daughter named Anissa in 1986. Mrs Bashari has denied that she gave birth to a daughter.
Mr Wee would have me accept the document DIMA obtained as authentic and yet question the authenticity of the documents produced by the applicants. He was unable to produce evidence to enable him to go beyond raising the question. The documents produced by the family support the oral evidence given by the applicants and by Mrs Mashid.
Taking all of the evidence into account and particularly that of Mrs Bashari and Mrs Mashid, I am satisfied that Ms Mariam Bashari and Mr Omer Bashari are twins. That finding means that one of their dates of birth is incorrectly recorded in DIMA’s documents. The only evidence that I have of the correct dates is that leading to the dates contended for by the applicants. I accept that evidence.
Mr Mustafa Bashari is more difficult. His date of birth was specifically altered shortly after the visa application was lodged and it was altered by DIMA on the basis of that information. It seems to me, however, that if I have accepted the sworn evidence of the family and of the documents in relation to the other children, I should do the same in relation to him.
Should I exercise the discretion in favour of amending DIMA’s documents?
My decision that DIMA’s records are incorrect does not lead to the automatic conclusion that they must be amended. Section 50(1) provides that the Minister may amend the record of information. The use of that word generally means signifies a discretion.[62] This is not a case in which, in the context in which the power is given in the Act, “may” must be read as “must”: see discussion by Finn J in Gribbles Pathology (Victoria) Pty Ltd v Minister for Health and Aged Care.[63] Of the notion of a discretion, Gleeson CJ, Gaudron and Hayne JJ said in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[64]
“‘Discretion’ is a notion that ‘signifies a number of different legal concepts’ …. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’ …. Rather, the decision-maker is allowed some latitude as to choice of the decision to be made …. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion …. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”[65]
[62] Acts Interpretation Act 1901, s. 33(2A)
[63] (2000) 106 FCR 1
[64] (2000) 203 CLR 194, 174 ALR 585
[65] (2000) 203 CLR 194; 174 ALR 585 at 205; 591-592 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80 per Smithers J
The discretion given by s 50(1) is not confined by the terms in which it is given. If there are any constraints upon its latitude, they are to be found in the subject matter and object of Part V of the FOI Act as well as its underlying policy.[66] These were considered by Senior Member Sassella in Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs:[67]
“The FOI Act is in general about rights of access to documents. Part V of the FOI Act, in common with Information Privacy Principle 7 in s 14 of the Privacy Act 1988, is intended to ensure the accuracy of official records concerning individuals….”[68]
Principle 7, to which Senior Member Sassella referred, provides that a record-keeper who has possession or control of a document containing personal information has an obligation to make corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record is accurate and, having regard to the purpose for which the information was collected or is to be used and to any related purpose, relevant, up to date and not misleading. That obligation is subject to any applicable limitation in a Commonwealth law providing a right to require the correction or amendment of documents.
[66] Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272
[67] [2004] AATA 410
[68] [2004] AATA 410 at [24(h)], omitting footnotes
The issues in the case before him also concerned questions of age. He said of them:
… If Mr Tang has misled government agencies or others by reducing the age he has quoted the appropriate action is to consider the remedies that attach to such misrepresentation. It seems, however, that the advantages have been minimal. He may have had easier access to work he has done successfully for 25 years. There was little other than that. It would seem to me that an example of an appropriate ground for refusal to exercise the discretion might be that there are voluminous documents that would require amendment or annotation for no useful result. That is not the case here.”[69]
[69] [2004] AATA 410 at [24(h)]
It seems to me that his comments are, in part, equally applicable to this case even though this is a case in which the ages of the applicants were over-stated in the visa application rather than under-stated.[70] Any advantages to the applicants in the overstatement of their ages on the visa applications are minimal, if any. That, however, does not seem to me to be a relevant consideration in determining whether or not to exercise the discretion. Instead, it is relevant in considering whether or not the information is incorrect. A variation of that consideration could be whether or not the error found to exist in the records is significant or insignificant. That, combined with the number of corrections that might have to be made, might be relevant. In this case, there is no suggestion that the records are voluminous and the evidence, that I accept, is that the errors are significant to the applicants. I also accept that they are significant in that they will, at this stage determine when the younger applicants reach the age of majority.
[70] In this regard, this case is distinguishable on its facts from the Tribunal’s decision in Re Goitom and Minister for Immigration and Indigenous Affairs [2005] AATA 204 at [31]-[32]
In Re Cox and Department of Defence,[71] Deputy President Todd said that the relevant factors to be considered in exercising the discretion under s 50(1) include:
“(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 un-amended form may serve an 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;
(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.”[72]
[71] (1990) 20 ALD 499
[72] (1990) 20 ALD 499 at 501
There is little evidence that is directed to these factors. Although regard would have been had to the applicants’ birth dates in considering the visa application, the granting of the visas did not itself determine their dates of birth. In the circumstances of this case in which ages were over-stated rather than under-stated, they were not crucial in the issue of the visas. Retention of the record in an unamended form certainly serves a purpose in the sense that it shows the basis on which the visa application was made and granted. Section 50(2) ensures that the integrity of the information in the original record is maintained if at all possible even if an amendment is made. The record does, however, serve a purpose in that it serves as the only Australian record of the applicants’ date of birth. It is true that DIMA’s records have already been altered once with regard to Mr Mustafa Bashari but, having heard Ms Mariam’s reasons for asking for it to be altered, I find that she did not do so with malice or with any improper motive.
Having regard to all of these matters, I am satisfied that the personal records of the applicants should be amended.
How should the personal records be amended?
Once a decision has been made to amend a personal record, s 50(2) gives the agency or Minister a further discretion. Should the personal records be amended by altering the document or by adding a note? Whichever method is chosen, s 50(3) requires the amendment to be made without obliteration of the original text if it is practicable to do so. It seems to me that DIMA’s personal records should be amended by an alteration striking out the birth dates shown on the records wherever they occur, the appropriate dates inserted and a note added they have been amended by virtue of this decision. Alteration of each record will ensure that they are not overlooked in the future.
For the reasons I have given, I:
1.set aside the decisions of the respondent dated 28 May 2005 affirming earlier decisions dated 1 September 2004;
2.substitute decisions that:
(1)in proceedings No. V2005/562 relating to Mr Mustafa Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a)striking a line through, but not obliterating, the date of birth shown as 7 April 1984 wherever it occurs;
(b)writing in close proximity to that entry the date of birth “25 November 1986”; and
(c)writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006;
(2)in proceedings No. V2005/566 relating to Ms Omer Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a)striking a line through, but not obliterating, the date of birth shown as 3 February 1986 wherever it occurs;
(b)writing in close proximity to that entry the date of birth “28 December 1988”; and
(c)writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006;
(3)in proceedings No. V2005/568 relating to Ms Mariam Bashari, the personal records held by the Department of Immigration and Multicultural Affairs be amended by:
(a)striking a line through, but not obliterating, the date of birth shown as 3 February 1987 wherever it occurs;
(b)writing in close proximity to that entry the date of birth “28 December 1988”; and
(c)writing words to the effect that the record has been amended by virtue of the Tribunal’s decision dated 2 October 2006.
I certify that the seventy-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Hearing 3 April 2006
Date of Decision 2 October 2006
Counsel for the Applicant Mr T. BestSolicitor for the Applicant Mr J. Longo
Victorian Legal AidSolicitor for the Respondent Mr B. Wee
Australian Government Solicitor
“The respondent had the burden under s 61 of establishing that its determination, refusing to amend its records, was justified. However the Tribunal has held that the applicant bears an initial or preliminary burden to provide evidence in support of an application for amendment.”
Section 61 of the Freedom of Information Act 1989 (NSW) provides that “In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.” In referring to “a determination”, s 61 is cast in much broader terms than s 61(1) of the FOI Act.
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