Re Majur Ndonya and Minister for Immigration and Citizenship
[2009] AATA 940
•7 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] aata 940
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1078
General Administrative DIVISION ) Re Majur Ndonya Applicant
And
Minister for Immigration & Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date7 December 2009
PlaceSydney
Decision
The Tribunal sets aside the decision under review and substitutes a decision that the respondent's record of the applicant's name and date of birth be amended in accordance with s 50(2)(a) of the Freedom of Information Act 1982 to show the applicant's name as Emmanuel Kot Job and his date of birth as 12 September 1991.
.................[sgd].........................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - Amendment of personal records – whether documents in possession of respondent contain personal information that is incorrect and misleading – Tribunal satisfied that relevant documents contain information that is incorrect – records of information contained in those documents to be amended –– decision under review set aside
Freedom of Information Act 1982
Australian Citizenship Act 1948
Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839
Abdul Wakil Lomani and Minister for Immigration and Citizenship [2008] AATA 74
Re Cox and Department of Defence (1990) 20 ALD 499
REASONS FOR DECISION
7 December 2009 Senior Member Jill Toohey Background
1. This is an application under the Freedom of Information Act 1982 (the FOI Act) for an order that the respondent amend its records to reflect what the applicant says are his correct name and date of birth.
2. The applicant was born in Sudan. He became separated from his parents in the civil war and spent several years in a refugee camp in Kenya where he was cared for by an older step-sister. They were reunited in the camp with an uncle and his uncle’s family. From there they have all resettled in Australia. Since arriving in Australia, the applicant has made contact with his mother, who is living in Kampala, Uganda. His father’s whereabouts are unknown.
3. The applicant came to Australia with his step-sister and her three children in March 2003 on an Offshore Humanitarian Visa. Depending on his correct date of birth, he was between 12 and 15 when he arrived. His uncle followed later with his family and now lives in Western Australia.
4. The respondent’s records show the applicant’s name as Majur Sufara Ndonya and his date of birth as 00/00/1988. The records are based on information provided in the refugee camp by the applicant’s uncle who included him in his own family for the purposes of their application for resettlement in Australia.
5. The applicant has asked the respondent to amend its records to reflect that his name is Emmanuel Kot Job and his date of birth 12 September 1991. He is mainly concerned to have his certificate of Australian citizenship amended. The certificate, issued in May 2006, shows him as Majur Sufara Ndonya, “born in 1988”.
6. The respondent has refused to amend its records but has placed a notation on its computer system to reflect what the applicant says is the correct information. He seeks review of that decision.
7. I will refer to the applicant as Mr Ndonya in this decision.
The legislation
8. By section 48 of the FOI Act, a person may apply to an agency for amendment or annotation of documents which it holds and which he or she claims contain personal information about him or her that is incomplete, incorrect, out of date or misleading.
9. An agency may amend its record of information where it is satisfied that it is incomplete, incorrect, out of date or misleading and has been used, is being used or is available for its use, for an administrative purpose: s 50.
10. An amendment may be made by altering a document to make the information correct, or by adding to it a note specifying the respects in which it is incorrect. To the extent that it is practicable to do so, when amending a document by altering it, the agency must 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: s 50(2) and (3).
11. Subject to some qualifications, documents may be annotated where an application for amendment is refused, or if a person so requests. This is done by adding to the document a statement provided by the applicant in the form specified in the FOI Act: s 51, 51A, 51B.
The issues
12. I have to decide whether the respondent’s record of the applicant’s name and date of birth is incorrect and, if so, whether and how the record should be amended.
13. There is no issue that Mr Ndonya’s application for amendment meets the requirements in s 49 of the FOI Act, or that the information in question has been used, is being used or is available for the respondent’s use, for an administrative purpose.
14. Although not raised by the parties, there is an issue as to whether s 61(1) of the FOI Act puts on the respondent the onus of establishing that its decision was justified. The issue was dealt with at length by the Tribunal in Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839 and considered more recently in Abdul Wakil Lomani and Minister for Immigration and Citizenship [2008] AATA 74.
15. In Bashari, the Tribunal concluded that the onus does not fall on the respondent in an application of this sort. The Tribunal in Lomani came to the same conclusion. I agree with those decisions and reasons and will not deal with this issue further.
Information concerning the applicant’s name and date of birth
16. The Tribunal has before it copies of various documents concerning Mr Ndonya’s resettlement in Australia, including his step-sister’s application for an Offshore Humanitarian Visa in which he was included.
17. The information in the visa application is sketchy in parts and appears incorrect in others. Most likely this reflects the circumstances in which it was prepared, including that English appears not to have been the first language of the person completing the application form. Matters are complicated by the fact that the composition of Mr Ndonya’s family is not entirely clear, partly because the family was broken up and some members were killed or disappeared in the war in Sudan, and because Mr Ndonya was separated from most of his family and in a refugee camp from about the age of seven.
18. From the information available, Mr Ndonya is one of seven or eight children including a younger brother he has never met. The children have three fathers between them, and different family names. His own father left the family when he was very young and he always believed that his step-father, whose family name was Kot Job, was his own father
19. Confusion about the family relationships is evident from the visa application in which his relationship to his step-sister is described as “Marternal (sic) uncle (mother’s brother)”. In another of the respondent’s documents he is described as “accompanied by his maternal uncle Amou Kot Job … and his uncle’s 3 children”.
20. Mr Ndonya’s step-sister’s name is Amou Kot Job. Her date of birth is shown in their visa application as “00/00/1974”. Her father is shown as Kot Job Acuoth and her mother as Sura Sufara. The family name of six brothers and sisters, three of whom are shown as “deceased” appears as Kot Job. They are all recorded to be Christians.
21. Mr Ndonya appears in the visa application as Majur Sufara Ndonya and his date of birth as “00/00/1988”. He says, and the respondent does not dispute, that this information was provided in the refugee camp by his uncle so that he would be included with his uncle’s family for resettlement. It is not clear why Mr Ndonya’s uncle gave his year of birth as 1988; presumably it was a guess. I note that, with one or two exceptions, the date of birth of every other family member is recorded as “00/00/00”.
22. For most official purposes, Mr Ndonya has been known in Australia as Majur Sufara Ndonya, born 00/00/1988. In some of the respondent’s documents his date of birth appears as “00/00/1988, assumed 31/12/1988”. In a document prepared by the New South Wales Department of Community Services, his date of birth appears as “01/01/1988”. His Certificate of Australian Citizenship shows a grant of citizenship to Majur Sufara Ndonya “born in 1988”.
23. Mr Ndonya gave evidence that, once he arrived in Australia, he continued to use the name and date of birth under which he was resettled, including in his application for citizenship, because he thought he had to go by the official record. However, some agencies now recognise him by his correct name and date of birth, and bank and medical records reflect his correct name and date of birth. He says he was not aware until recently that he could apply to have the respondent’s record corrected.
24. Mr Ndonya has submitted an unsigned statutory declaration dated July 2008 from his step-sister, Amou Kot Job. It is not clear what has become of the original. She did not give oral evidence, and Mr Ndonya says there is a problem within the family that means that neither she nor his uncle wants to be involved in this application. I did not press him about the reason for the problem; I accept his evidence and do not take their lack of support as reflecting on his credibility.
25. Ms Job’s statutory declaration supports Mr Ndonya’s claim about his name. She says she cannot recall his exact date of birth but a birth date of 1 January 1988 would make him older than he really is; to the best of her knowledge he was born on 12 September 1991. She says that date has been “confirmed” with their mother in Kampala with whom they are now in contact.
26. Mr Ndonya is now in regular contact with his mother, Sura Sufara, by telephone and the Tribunal heard evidence from her by telephone through an interpreter. She stated his name at birth was Majik and he was baptised Emmanuel before he could walk; his family name is Job. Contrary to the statement from Mr Ndonya’s sister that she had confirmed his date of birth with their mother, Mrs Sufara could not say exactly when he was born. She said that birthdates are identified by events, for example, “a child born in the year of 9/11” or the year an important person died. She thinks he is 19 “more or less” and is about three years older than his younger brother who is nearly 16.
27. Because she did not give oral evidence, it was not possible to clarify with Mr Ndonya’s sister the source of her information about his date of birth. However, her statement that she had confirmed it with their mother appears to be incorrect.
28. Clearly, Mr Ndonya cannot know directly his own date of birth and is reliant on others for that information. He says he was born in 1991, being the year that a particular head man in the family’s village died. He is adamant that he was born on 12 September 1991 although the source of this information is not clear.
29. Mr Ndonya has submitted a document headed “Birth Certificate” from Rumbek State Hospital in Sudan, which an aunt has obtained for him. It gives his date of birth as 12 September 1991. There is no reason to doubt the authenticity of the document itself but no weight can attach to it. The respondent says, and Mr Ndonya does not dispute, that it is of little value. This is because many official records in Sudan have been destroyed in the civil war, and replacement birth certificates are commonly issued on the basis of information provided by the persons requesting them and not on original records.
Is the information concerning the applicant’s name and date of birth incorrect?
30. The respondent submits that, on the balance of probabilities, the information in its records is correct and, in any event, is the best evidence there is of Mr Ndonya’s name and date of birth.
31. I have no reason to doubt Mr Ndonya’s evidence and the respondent does not take issue with the credibility of his claims. I accept his account of how he came to be known as Majur Sufara Ndonya. His reason for continuing to use that name after he arrived in Australia, including in his application for Australian citizenship, is plausible and I accept his evidence about this.
32. Although the evidence of Mr Ndonya’s step-sister’s evidence has not been tested, there is no reason to doubt her name or their relationship. Although it was not entirely satisfactory to hear from his mother by telephone from Uganda and through an interpreter, I have no reason to doubt her evidence.
33. I am satisfied, on the evidence before me, that Mr Ndonya’s correct name is Emmanuel Kot Job and that the respondent’s record of his name is incorrect.
34. The respondent concedes that Mr Ndonya’s date of birth, in the various forms it appears in its documents, is not correct but contends that his recorded year of birth, 1988, is not incorrect. The respondent submits that the evidence suggesting it is 12 September 1991 is unsatisfactory and that his correct date of birth cannot be established satisfactorily.
35. The record of Mr Ndonya’s date of birth as 00/00/1988 is plainly incorrect. Attempts have apparently been made to give some meaning to the record by recording his date of birth as “assumed 31/12/1988”, “31/12/1988” and “01/01/1988”. I am satisfied that those dates are also incorrect and note that they are a full year apart.
36. It is more difficult to say what Mr Ndonya’s correct date of birth is. The “birth certificate” is not reliable evidence. The most reliable informant is his mother who cannot say for sure even the year of his birth. However, accepting his mother’s evidence that there are three years between him and his 15-year old brother, 1991 is more likely to be the correct year of birth than 1988 which would make him 21 or 22. The actual date, 12 September 1991, appears to be a guess at best.
Should the respondent’s records be amended?
37. For the following reasons I am satisfied that the respondent’s records should be amended.
38. The respondent submits that, even if its records are found to be incorrect, the Tribunal should not exercise its discretion to amend them. In the first place, it questions the utility of amending the records when Mr Ndonya’s main difficulty is with his certificate of citizenship. The certificate is not in the respondent’s possession and therefore not a “document of an agency” as defined by s 4, and required by s 48, of the FOI Act. It is not a document that can be amended by means of the current application.
39. The respondent submits that, even if incorrect, the record as it stands reflects the history of Mr Ndonya’s application and arrival in Australia. Further, that Mr Ndonya’s concerns about its records can be dealt with adequately by the notation already placed on them.
40. Mr Ndonya feels strongly that he is disadvantaged by circumstances beyond his control. When he came to Australia he was put into a class at school on the basis of his incorrect age; he struggled because he was actually several years younger and he eventually dropped out of school; he is currently completing his year 12 studies. He says that going by his current name and date of birth depresses him and reminds him every day of the situation he left behind in Sudan. He has been laughed at on occasions such as on public transport when he has had to produce identity documentation showing his date of birth as 00/00/1988. He believes his career, social and emotional future will be adversely affected. He wants his correct name, to reflect that he is Christian. Although some agencies recognise him by his correct name and date of birth, he says the respondent’s records remain the official source of his identity in this country and he is aggrieved especially by the certificate of citizenship which is the public proof of his identity.
41. Mr Ndonya has submitted a letter from Edward Smith, Director of Next Level Basketball Association who coaches and mentors young Sudanese basketball players. Mr Smith states he has coached many others whose names and dates of birth have been “altered or adjusted to ensure they reach safe haven”. He says a 19-year old who is actually 15 faces hurdles, academically, socially and physically when up against others who really are 19, and these handicaps can affect their potential to secure scholarships.
42. The Tribunal considered in Re Cox and Department of Defence (1990) 20 ALD 499 the factors relevant to exercising the discretion to amend a record. Factors it identified which are relevant in this case 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;
…
(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;”
43. I recognise, as the respondent says, that its records reflect the history of Mr Ndonya’s application for resettlement and that there is value in retaining that history. However, the record does not now serve a continuing purpose and, in any event an amendment in accordance with s 50(3) of the FOI Act would not obliterate the record; to that extent, the historical record is preserved.
44. I accept that amending its records would cause the respondent work but the records are not extensive and I do not think it unduly onerous for amendments to be made.
45. I accept that amending the respondent’s record may have limited utility if access to the respondent’s records is limited and if other agencies already recognise him by his correct name and date of birth. It will have no effect on his certificate of citizenship which cannot be amended by the current application. It is open to him to ask the Department for Immigration and Citizenship, on behalf of the Minister, to amend his certificate of citizenship pursuant to s 47 of the AustralianCitizenshipAct 1948 but that is not a matter presently before the Tribunal.
46. In relation to Mr Ndonya’s name, it is stating the obvious that a person’s name is a fundamental part of his or her identity. In the circumstances in which Mr Ndonya finds himself in Australia, it is not hard to understand why official recognition by his own name is so important to him.
47. I am satisfied that the respondent’s record should be amended in accordance with s 50(2)(a) of the FOI Act to show Mr Ndonya’s correct name as Emmanuel Kot Job.
48. Mr Ndonya’s date of birth is more difficult; as currently recorded, it is plainly wrong. I am satisfied, on the best available evidence, that he was born in 1991 but there is no way of ascertaining with any certainty his actual date of birth and there does not seem to be any reasonable prospect of doing so in the future.
49. Section 50(2)(a) of the FOI Act provides that the agency may make the amendment “by altering the document … to make the information complete, correct, up to date or misleading”. The trouble in this case is the lack of probative evidence by which to correct the information.
50. With identity documents showing only a year of birth, Mr Ndonya will face difficulties which the respondent readily acknowledges. He will likely face difficulties in education, and access to services and benefits, and in any area in which eligibility depends on age.
51. An option would be to amend the record to show Mr Ndonya’s date of birth as 1 January 1988 or 31 December 1988, both of which have been adopted in the past. However, both are as plainly fictitious as 00/00/1988, only more meaningful.
52. On balance, given Mr Ndonya’s insistence that his date of birth is 12 September 1991, even though the source of the information is not clear, I am satisfied that the record should be amended to reflect that as his date of birth.
Conclusion
53. It is open to Mr Ndonya to ask the Department for Immigration and Citizenship, on behalf of the Minister, to amend his certificate of citizenship pursuant to s 47 of the Australian Citizenship Act 1948. As that is not a matter presently before the Tribunal, no directions can be made in that regard. However, the respondent has indicated that a finding by the Tribunal that Mr Ndonya’s name and date of birth have been incorrectly recorded would be a “strong consideration” on such an application.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.
Signed: ……[sgd]…….………
Diana Weston, Associate
Date of hearing: 6 November 2009
Date of decision: 7 December 2009
Representative for the Applicant: Self-representedSolicitor for the Respondent: Ms Therese Quinn, DLA Phillips Fox
2
0