Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 410

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 410

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/649

GENERAL ADMINISTRATIVE DIVISION		)
Re		SONE TANG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date23 April 2004

PlaceSydney

Decision The decision under review is set aside. The tribunal substitutes its own decision that, in accordance with s 50(1) of the Freedom of Information Act 1982, documents relating to Mr Tang held by the Department of Immigration and Multicultural and Indigenous Affairs are to be amended or annotated to reflect that Mr Tang was born in 1939 on an uncertain date.

[sgd] M J Sassella

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – amendment of personal records – personal records in possession of Commonwealth agency show incorrect date of birth of applicant – discretion to amend records exercised – official records should be as accurate as possible- decision set aside

Freedom of Information Act 1982 ss 48, 50(1), 61

Privacy Act 1988 s 14

REASONS FOR DECISION

23 April 2004 Michael Sassella, Senior Member           

RESULT

Mr Tang has succeeded in his application.  The documents held by the department are to show his date of birth as 1939. 

BACKGROUND

1.      Sone Tang (“the applicant”) was born in Cambodia in either 1939 or 1943.  He migrated to Australia on 12 January 1978.  He wishes to have his date of birth entered on his Australian official records as 6 July 1939.  Currently he is shown as born on 6 July 1943 on his immigration papers.  He applied to the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) through the Department of Immigration and Multicultural and Indigenous Affairs (“the department”) to have his personal particulars on his records amended.  The department refused his request initially and on internal review.  Mr Tang applied to the Administrative Appeals Tribunal (“the tribunal”) for review of that decision.

ISSUES

2. Section 48 of the Freedom of Information Act 1982 (“the FOI Act”)[1] provides that a person may make application for amendment of a record. The class of person who may seek this is described in s 48. The following issues arise for determination under s 48 in Mr Tang’s case:

(a)Is Mr Tang an Australian citizen?

(b)Has Mr Tang claimed that a document held by the department contains information relating to his personal affairs that is incomplete, incorrect, out of date or misleading?

(c)Has the document been used or is it being used or is it available for use by the agency?

[1] Section 50 of the FOI Act permits a Minister or an agency to decide to amend a record to which the request relates. The agency or the Minister may, in its or the Minister’s discretion, make the amendment by altering or annotating the record. This prompts the following issue:

(d)Should the decision-maker have decided to amend or annotate the records?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(a)      Is Mr Tang an Australian citizen?

4. Section 48 limits the remedy of amendment to a person who is an Australian citizen or a person whose continued presence in Australia is not limited as to time by any law. Mr Tang was given his certificate of Australian citizenship on 31 July 1986. He is an Australian citizen.

(b)      Has Mr Tang claimed that a document held by the department contains information relating to his personal affairs that is incomplete, incorrect, out of date or misleading?

5.      As was seen in [1] Mr Tang has claimed that documentation held by the department contains incorrect data.

(c)      Has the document been used or is it being used or is it available for use by the agency?

6.      There are several documents caught up in Mr Tang’s application:

·     An application for entry to Australia for settlement (undated).  This document was presumably “used” by the department in processing Mr Tang’s initial entry into Australia.

·     A record of interview by the department with Mr Tang’s sponsor when his entry into Australia was being considered.  This is dated 14 March 1978.  This document was presumably “used” by the department in processing Mr Tang’s initial entry into Australia.

·     A document relating to the composition of Mr Tang’s family, apparently based on advice from his mother, gave his birth date as 1943.  The dates of birth of siblings precluded him from having been born in 1939.  This is dated 14 March 1978.  This document was presumably “used” by the department in processing Mr Tang’s initial entry into Australia.

·     A letter of authority for Mr Tang’s travel to Australia issued by the Australian Embassy in Bangkok on 22 June 1978.  This document was presumably “used” by the department in processing Mr Tang’s initial entry into Australia.

·     Mr Tang’s application for Australian citizenship records Mr Tang’s birth date as 6 July 1943.  This document would have been used by the department in processing Mr Tang’s citizenship application.  The document is dated 27 March 1986.

·     Mr Tang’s wife’s application for Australian citizenship records Mr Tang’s birth date as 6 July 1943.  This document would have been used by the department in processing Mrs Tang’s citizenship application.  The document is dated 4 June 1986.

·     Mr Tang’s certificate of Australian citizenship shows his birth date as 6 July 1943.

·     Mr Tang’s request for access to documents dated 5 June 2002 shows his birth date as 6 July 1943.

7.      The answer to the question is, therefore, that the agency holds documents with the allegedly incorrect birth date that have been used and remain available for use by the agency.

(d)      Should the decision-maker have decided to amend or annotate the records?

8.      The reasons given for refusing to amend Mr Tang’s records were the significant number of documents nominating the date as 1943, that several documents he provided issued by the government of Kampuchea showing a birth date of 1939 related to a person named Sia Suon Jiang and showing no day or month of birth and there were discrepancies regarding where Mr Tang had been born.  The decision-maker intimated that if Mr Tang had firmer corroborative evidence of a date of birth of 6 July 1939 he could reapply for an amendment.

9.      When the department conducted an internal review of the refusal and upheld that decision the decision-maker cited the following reasons:

·     Mr Tang had not addressed the matter of consistent use of 1943 as his year of birth.

·     Mr Tang had provided an identity card as evidence of his year of birth but aspects of what surrounded that card threw doubt on its evidentiary value.  The card said his place of birth was Takeo.  Mr Tang said it was actually Krajia. 

·     Mr Tang said he had to return each year to Krajia, as his place of birth, to pay his taxes when he lived in Cambodia.  The department had advice that taxes for 40 years had been collected at a person’s place of residence in Cambodia, not where he/she was born. 

·     Mr Tang said Cambodia issued him with identity papers at birth, upon entering school and when turning 18.  When he received the last of these, he said, he had to return the earlier papers.  Departmental advice was that there was no requirement to return identity papers. 

·     Mr Tang said he had no marriage certificate because these were not issued in Cambodia.  The department had advice that all commune offices issued marriage certificates at the relevant time.

10.     Mr Tang was assisted at the hearing by Mr Mien Jiang, his son.  Mr Tang gave oral evidence.  He said under oath that the correct date of birth was 6 July 1939.  Later he said it was 3 May 1939, based on the date appearing in a passport issued by the People’s Republic of China dated 1976 and issued in Vientiane, Laos.  This discrepancy was explained by use of a Chinese calendar for the second date.  Eventually it emerged that Mr Tang is uncertain of his date of birth although he is certain that the year was 1939.  I find this credible.  It is easy to accept that bureaucratic record-keeping in Cambodia in the 1930s and 1940s, and perhaps since, was of a standard inferior to Australian record-keeping. 

11.     The documents exhibited by Mr Tang in support of his case were:

· The Chinese passport described in [10].

·     The Cambodian identity document issued on 13 November 1962.  This showed a date of birth, 1939.  Place of birth and of residence was Takeo City, Kampuchea.  The person identified was Sia-Soon Jiang.

·     Tax payment receipts for 1962-1970 issued by Takeo. 

·     An employment record showing 1939 as birth date for Jiang Sia Suon.

12.     In his oral evidence Mr Tang was adamant that Cambodian taxes were paid in the place where the taxpayer was born.  He explained the lack of a marriage certificate by saying that the Cambodian government issued none.  He and his wife were married in 1968.  The ceremony was in the usual informal style used in Cambodia.  A group of people, probably “witnesses”, convened and had a non-religious celebration.  There was no record of the event and it was not reported to any element of a bureaucracy. 

13.     As regards the identity cards issued by the Cambodian government, these were issued at age nine and at 18 years.  Mr Tang did not seek the return of old cards taken by the bureaucrats.  The first card carried a photograph and finger print.  In 1962 all cards were superseded and reissued.  Mr Tang left Cambodia in 1973 and had that card until 1990. 

14.     Mr Tang had explained falsifying his age in a statutory declaration dated 28 June 2002.  He was told in refugee camps that his acceptance in Australia would be quicker if he were younger.  It was thought that younger people were more easily employable and useful to Australian society.  He had not corrected the records when he arrived in Australia or when applying for citizenship because he could not read, write or speak English well. 

15.     In cross-examination Ms Goodman suggested to Mr Tang that the Chinese passport was not his because of the way the name was represented.  She queried the name also on the teacher identity card.  She noted that that card gave Phnom Penh as the place of birth.  Mr Tang explained that everyone from Cambodia said they were from Phnom Penh.  Their city of origin was not treated as a serious issue.

16.     As regards his place of birth, Mr Tang told the tribunal it was Takeo.  Krajia was where he went to school.  They are 300 kilometres apart.  Mr Tang said he never returned to Takeo.  He then said he returned to Takeo in 1962 to collect a new identity card.  He said his taxes were paid at Takeo through friends living there. 

17.     In cross-examination Ms Goodman challenged Mr Tang with the various pieces of information the department had received about marriage certificates, identity cards, etc set out in [9] above.  She suggested that Mr Tang held back documents not showing 1939 as the year of birth.  Mr Tang held to his earlier evidence.  The gist of this was that individuals had no right to demand anything in Cambodia or to keep anything the bureaucracy sought from an individual. 

18.     The family composition document based on advice from Mr Tang’s mother (see [6] above) was in fact not completed by his natural mother, said Mr Tang.  This was not Mr Tang’s real mother. She had virtually adopted Mr Tang. 

19.     Mr Tang told the tribunal that he wished to correct the date of birth so that he could retire and claim Age Pension. 

20.     Mr Jiang, Mr Tang’s son, gave evidence on oath.  He said that birthdays are not seen as important in Cambodia in the Chinese community.  They are not regularly celebrated.  Mr Jiang said that he and his father had no documents they had withheld. 

21.     Ms Goodman finalised by arguing (i) that the date of birth was correct as recorded and, (ii) that the documents nominating 1939 as the date of birth were not issued to Mr Tang.  She submitted that no document actually gave 6 July 1939 as the date of birth. 

22. Ms Goodman submitted that the discretion in s 50(1) of the FOI Act should not be exercised in Mr Tang’s favour even if the tribunal considers his date of birth to be 1939. She said that Mr Tang had had the benefits flowing from quoting his date of birth as 1943 – easier entry to Australia as a refugee, improved access to employment. Effectively the argument was that he should not be allowed to “have it both ways”. Ms Goodman submitted that Mr Tang’s evidence regarding the falsified birth date affected generally his credibility.

23. Ms Goodman submitted that an amendment could be made only if the tribunal can be satisfied regarding an exact date of birth. Amendment of the date simply to “1939” would not be possible under s 50.

24.     I make the following comments which go to the weight I propose to attach to the various salient submissions and pieces of evidence in this matter. 

(a)I do not regard the variant spellings of what Mr Tang says is his name as proof that the documents containing those spellings were issued to a third person.  I am satisfied on the balance of probabilities that they were issued to Mr Tang and were intended to refer to him.  It is common in the work we do at the tribunal to find variant spellings of the names of applicants from other nations.  This is especially common in the case of Asian countries.  The variations here are sufficiently close to the Anglicised name Mr Tang now uses to convince me that they refer to him.

(b)I am also not surprised that Mr Tang is unaware of his exact date of birth.  In countries such as Cambodia which have had social and political upheaval and an outflow of refugees it is common for nationals to be unaware of matters of personal history that are fully recorded for Australians in Australia.  It was unfortunate that Mr Tang risked his credibility before the department and the tribunal by asserting that he was born on a certain date in 1939 when he had later to admit that he really does not know. 

(c)Mr Tang is adamant that his place of birth was Takeo.  Other possibilities were Krajia and Phnom Penh.  I was satisfied with his explanation for these inconsistencies.  Piecing together parts of Mr Tang’s evidence, his earlier life in Cambodia seems to have involved birth in Takeo, school in Krajia and attachment to a family in Krajia as an adoptee.  The documentary evidence that appears most reliable records Takeo as the place of birth or as the city of attachment.  I consider that some of the inconsistencies in evidence given to the department by Mr Tang stem from his difficulties with English and his different cultural appreciation of some concepts that appear basic to us, eg dates of birth, places of birth. 

(d)The department saw 1943 as the year of birth consistently cited.  When the only documentation taken into account is that created after Mr Tang took steps to come to Australia this proposition is correct.  However, the department has not pointed to any earlier documentation showing 1943 as his birth date.

(e)As regards the official identity papers Mr Tang might be expected to hold from the Cambodian government, the department ascertained that Cambodian citizens were not required to return birth certificates and later identification documents in exchange for a new identity card at age 18.  The documentary evidence regarding this consisted of a very short email from Cambodia.  It was unclear from that how the writer knew the information she was imparting, what (if any) research she had done and whether she was in a position to say that the same situation had pertained over the last 30 to 40 years throughout Cambodia.  It is feasible that in Mr Tang’s part of Cambodia the situation was as he described.

(f)The department received its own information from the same source regarding marriage certificates in Cambodia.  I would repeat what I said in (g) about identity papers.  This evidence suffers from the same problems.

(g)I am satisfied on the balance of probabilities that Mr Tang and Mr Jiang have access to no relevant documentation in addition to that already provided.  I found Mr Jiang an impressive witness and advocate for his father. 

(h)I have some difficulty that an amendment should be refused because Mr Tang received some benefit from reducing his apparent age when he came to Australia. While exercise of the power under s 50(1) is discretionary I doubt that exercise of the discretion against making an amendment should normally be refused on this basis. It seems an irrelevant consideration. 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[2], is intended to ensure the accuracy of official records concerning individuals.  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.

(i)Section 61 of the FOI Act provides that in a tribunal matter 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. This casts a burden on the respondent in these proceedings to satisfy the tribunal that it should not grant Mr Tang’s request in the exercise of its powers.

(j)I am not satisfied that it is necessary to be satisfied as regards an exact birth date in order to exercise the discretion in s 50(1). It is not uncommon for refugees and some other migrants to Australia not to know their exact birth dates and Australian bureaucratic authorities must then do their best to treat them in a constructive and non-discriminatory way. It would seem to me that, if Mr Tang was born on a date uncertain but in 1939, it would be preferable that his official records show him as born in 1939 rather than on a date in 1943 that is entirely incorrect.

[2] these propositions to the issue at hand, whether the discretion should be exercised, I find that Mr Tang was born on a date uncertain in 1939 in Takeo, Cambodia.  I find that the discretion should be exercised in Mr Tang’s favour and his date of birth be altered to “1939” in the documentation held by the department.  The most important reason for this is that it will improve the accuracy of the official documentation.

CONCLUSION

26.     Mr Tang has succeeded in his application.  The documents held by the department are to show his date of birth as 1939.  I should mention that achieving this result was not essential to Mr Tang being able to claim an Age Pension.  Centrelink would make its own inquiries regarding Mr Tang’s age if he were to claim a pension and Centrelink could have decided to accept 1939 as the year of birth.

DECISION

27. The decision under review is set aside. The tribunal substitutes its own decision that, in accordance with s 50(1) of the Freedom of Information Act 1982, documents relating to Mr Tang held by the Department of Immigration and Multicultural and Indigenous Affairs are to be amended or annotated to reflect that Mr Tang was born in 1939 on an uncertain date.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  28 January 2004
Date of decision  23 April 2004
Advocate for the applicant        Mr Mien Jiang
Counsel for the respondent      Ms Susan Goodman
Solicitor for the respondent      Blake Dawson Waldron Lawyers