Toe and Secretary, Department of Immigration and Border Protection (Freedom of information)

[2017] AATA 572

Toe and Secretary, Department of Immigration and Border Protection (Freedom of information) [2017] AATA 572 (14 March 2017)

Division:FREEDOM OF INFORMATION DIVISION

File Number:           2014/4956

Re:Beatrice Toe

APPLICANT

AndSecretary, Department of Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:14 March 2017

Place:Melbourne

The Tribunal affirms the decision under review.

............................[sgd]............................................

Miss E A Shanahan, Member

FREEDOM OF INFORMATION  – Application to amend year of birth and add middle name to records – Liberian citizen – refugee – humanitarian visa – claim of age discrimination – Liberian birth documentation determined by Forensic Examiner to be counterfeit – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth); s 37

Freedom of Information Act 1982 (Cth); Part 5; ss 48, 49, 50 & 61(1)(b)

Cases

Re John Grass and Secretary, Department of Immigration and Border Protection [2014] AAT 751

Use of the character ‘x’ in a personal identifier in this decision indicates that the address, date or number has been modified in accordance with the Tribunal’s policy on the disclosure of personal information in decisions.

REASONS FOR DECISION

Miss E A Shanahan, Member

14 March 2017

1. Ms Beatrice Toe applied to the Department of Immigration and Border Protection (the Department) on 31 August 2011 to have her year of birth changed from 1971 to 1983 and to have her name amended by adding the middle name of Susan.  On 9 November 2012, she again lodged an application for the change of year of birth and the addition of the middle name.  Both applications were refused, the second refusal being on 6 December 2012.  The applicant sought review by the Freedom of Information Commissioner (the Commissioner) on 24 December 2012 and the Commissioner on 29 August 2014, affirmed the Department’s decision not to amend Ms Toe’s record as requested.

2. Ms Toe lodged an application to the Administrative Appeals Tribunal on 23 September 2014. 

3. At the hearing before this Tribunal Ms Toe was represented by Mr Sabinus Robi, solicitor, from Kaprivi Legal and the Department by Ms Emily Latif of counsel instructed by Ms Jolanta Kowalewska, solicitor, from the Australian Government Solicitor. The Department provided T-Documents and Supplementary T-Documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 and these were assigned the exhibit numbers of R1 and R2.  Further documentation was tendered in the course of the hearing and a list of exhibits is appended to this decision. 

4. Ms Beatrice Toe and her sister Martha Toe gave evidence before the Tribunal and Mr Daniel Bell and Mr Richard Featherstone gave their evidence by telephone.

   BACKGROUND TO THE APPLICATION

5. Ms Beatrice Toe was born in Liberia.  In all the documentation produced prior to her arrival in Australia on 31 May 2007 her date of birth was stated to be xx September 1971. Ms Toe has said that during the first civil war in Liberia, she, then aged approximately five was living with her sister Sarah in Kakata so that she could attend school.  After one year she returned to live with her father and his second or other wife and five children.  In 1990, the family was attacked and her father, having been accused of being a rebel, was killed.  One of the attackers, Saber Blamo, had known her father. He arranged for her and her sister to be taken to a small village to the care of a relative of his who then took these two children to the Ivory Coast.  This lady is referred to as Aunty Betty. 

6. Ms Toe’s step-mother’s children Prince and Princess went with her and they then relocated to live with another family in Gozone.  Ms Toe remained in the Tai refugee camp in the Ivory Coast. 

7. In 2002, war broke out in the Ivory Coast and the Tai refugee camp was attacked.  At the time Ms Toe said she was pregnant with her twins. She fled to Zawe and registered with the Office of the United Nations High Commissioner for Refugees (UNHCR).  They were then sent to a camp in Guinea named Laine, where she stayed until she migrated to Australia.  In addition to her twins, Ms Toe was accompanied by her niece Majay Konah who was then seven years of age. 

8. In Laine, Ms Toe met a lady named Yiampu Topa who knew that her sister Martha had migrated to Australia.  This contact appears to have been made in approximately 2002 although the dates are not clear.  Thereafter Ms Toe communicated with her sister Martha whenever she could.  This was conducted by telephone and she had to drive one to two hours from Laine to a telephone to make contact.  Martha sent money which greatly improved Ms Beatrice Toe’s situation.  Beatrice asked her sister to sponsor her as a refugee under the humanitarian arrangements to Australia.  Martha completed the required forms. 

9. As Martha Toe is illiterate she had required the assistance of one Aaron Moaplay Toweh in filling out her own Humanitarian Visa application form dated 4 August 2003.  This application covered Martha and eight children, seven of whom were said to be her biological children and one a step-son.  Martha also provided details of her parents and siblings, including their dates of birth.  Beatrice Toe’s date of birth was entered as being xx September 1971, she being the youngest of seven children born between 1959 and 1971. 

10. Ms Toe’s UNHCR Refugee Certificate was dated 23 November 2005 with an expiry date of 23 November 2006.  This document stated her date of birth as January 1971.  Ms Beatrice Toe completed her Offshore Humanitarian Visa Application (Form 842), dated 2 June 2006 and lodged it with the Department on 9 May 2006.  It stated that she had been in a de-facto relationship between 1990 and November 2002 with Melvin Konah whose current whereabouts were unknown and that he had fathered her twins Nush and Lovettee, their date of birth being 1 January 2003 ( as per UNHCR practice).  In Martha Toe’s Refugee and Special Humanitarian Proposal (Form 681), she listed the names of those she wished to propose for entry to Australia as being Beatrice Toe, Lovettee Konah, Nush Konah and Majay Konah, Lovettee and Majay being her nieces and Nush her nephew and presumably the children of Beatrice. 

11. In support of her second claim under the Freedom of Information Act 1982 (the FOI Act) lodged on 9 November 2012, Beatrice Toe provided additional documentary evidence, this having been lacking in her application of 2011. These additional items of documentary evidence were:

    ·Her Birth Certificate;

    ·A Church letter;

    ·A Liberian identification card;

    ·Two Statutory Declarations; and

    ·One undeclared statement.

12. Of the above, the Birth Certificate was the most relevant document and was said to have been found in 2011.  Beatrice’s mother Mary had, on all forms, including those lodged by Martha and Beatrice, been declared as status unknown.  This is in contrast to their father, who was declared as deceased in those forms.  According to Beatrice, she spoke with her mother now living in Guinea on 1 July 2011 and to her surprise found her mother had a copy of her birth certificate. She had kept this certificate, along with other important documents, in a metal box.  What is said to be a copy of this certificate, dating Beatrice’s date of birth as xx September 1983, was forwarded by her mother in Guinea following this conversation.  It is to be noted that Beatrice lodged an application in 2010 for her mother to be accepted on a Humanitarian Visa with her as the sponsor.  According to Beatrice, her mother had not mentioned that she had a copy of her Birth Certificate when the visa application was lodged in 2010.

13. The copy of the Birth Certificate stated it was issued by the Principal Registrar, Division of Records and Vital Statistics, Ministry of Health & Social Welfare on 11 May 1984 and recorded that Ms Toe was born xx September 1983 in Nimba County.  The Department obtained further advice from its Nairobi post as to the authenticity of the document and on 9 April 2014 the Nairobi post advised, having received a response from the Principal Registrar at the Liberian Ministry of Health and Social Welfare, that there was no record of such a birth and date of birth and that the document submitted was faked.  What was said to be the original Birth Certificate was presented on 14 October 2016.

14. Subsequent examination of the original certificate of birth was performed by Mr Richard Featherstone, Forensic Document Examiner of the Department of Immigration and Border Protection who has considerable experience in this area. The certificate was determined to be a counterfeit. 

15. The report from the Glorious Church of Christ Mission was completed by a Reverend Sunny Inola, attesting to Beatrice Toe’s date of birth being xx September 1983.  He stated he had known Ms Toe since 2006 when she left for Austria.[sic]

16. The Liberian Citizenship card records that Beatrice Toe was born on SEPTEMBER xx, 1983.  The date of issue was 15 April 2005.

17. The Statutory Declarations provided came from Beatrice Toe and her sister, Serena.  The undeclared statement was provided by Martha Toe.  Both Beatrice and Serena stated that the entries relating to Beatrice’s date of birth were an error made by Martha in her instructions to Mr Toweh for the purposes of completing the forms.  In her undeclared statement, Martha stated that Mr Toweh misunderstood her instructions due to her Liberian accent.

    EVIDENCE BEFORE THE TRIBUNAL

    Beatrice Toe

18. Ms Toe’s evidence has been summarised under BACKGROUND TO THE APPLICATION. In her evidence before the Tribunal, she clarified that she had never been married and between 1990 and 2002 she had been in a de-facto relationship with Melvin Konah.  She had given birth to twins, a boy and a girl in 2003, her de-facto husband having been declared missing prior to their birth.  While she agreed that she had listed five children as being her biological children in her application form for the Humanitarian Visa, she said this was done because they had been so listed on her sister Martha’s sponsorship application form. This was incorrect, Martha having named the twins as Beatrice’s children and declared Majay as a niece. 

19. Ms Beatrice Toe also agreed that if, as she claimed, her year of birth was 1983 she would have been seven when she fled to the Ivory Coast with her two step siblings Prince and Princess in her care and that on arrival in the Ivory Coast at the age of approximately seven had entered into a traditional marriage.  By the time she was approximately 12 she had had three children, having at the age of seven commenced a relationship with Melvin Konah.  Ms Beatrice Toe rejected this suggestion posed by Ms Latif and reiterated that they were not her children, she had only had the one set of twins born in 2003.  The only other person on her list of children or nominated as a niece, Majay, is now living in Australia, is aged 21 and has just given birth to her first child.  DNA testing had been performed and the results indicated that there was at least an aunt/niece relationship between Beatrice Toe and Majay. 

20. Ms Toe justified her entries in her application for refugee status and migration to Australia as being dictated by what had been originally declared in her sister Martha’s application of 2003.  Ms Beatrice Toe confirmed that having arrived in Australia in 2007 she had undertaken training in disability care service provision and having obtained a Certificate VI in disability care, worked for one year as a trainee and for the past seven years has been employed part time with a disability provider named SCOPE working for 48 hours per fortnight.  She also works in disability care employed as a casual by the Victorian Department of Human Services and has done so since 2012. In effect, she works full-time.

21. Ms Toe had made an application to work part-time or casually with the Murrumbeena Local Council in the area of disability care provision but claims she was rejected because of her age.  She claimed that her failure to obtain this one job with the Murrumbeena Council providing care and supervising recreational activities for young disabled persons has resulted in a great deal of anxiety which in turn has affected her concentration, even to the extent that she forgets to turn up to work. 

22. Ms Beatrice Toe attributed the majority of the incorrect entries in her application forms and even her UNHCR refugee status document to information provided by others which led her to maintain these entries in order to achieve her desired refugee status and acceptance as a refugee by the Australian authorities.  She believed that any attempt on her part to correct the errors would adversely impact on her application for migration.

    Ms Martha Toe

23. Martha Toe is Beatrice’s older sister. She was accepted as a humanitarian refugee by Australia in 2003 along with the eight nominated persons, seven of whom were her biological children.  Martha Toe confirmed that all the entries relating to Beatrice’s date of birth were an error, this error being attributed solely to Aaron Moaplay Toweh’s incorrect entry, despite all other birth dates of her siblings being correct.  The resulting claimed incorrect year of birth entry had caused a major rift between Martha and Beatrice which was still not fully resolved. 

    Daniel Peter Bell

24. Mr Bell is a senior investigator with the Australian Border Force who had been posted to the Australian Mission in Pretoria, South Africa.  In 2014 he had visited Liberia and spent time with the Registrar’s Office in Monrovia.  He was familiar with the necessary documentation and the liaison work carried out in relation to humanitarian refugees from Liberia.  He confirmed that Beatrice Toe’s refugee certificate had been issued by the UNHCR certifying Ms Toe as a refugee, recognised by Guinea.  The document was dated 23 November 2005.  According to Mr Bell, information recorded in these certificates may be provided by the applicant or other persons and that Ms Beatrice Toe’s document was part of an application for an Offshore Humanitarian Visa. 

25. Mr Bell described two streams that are available in terms of Offshore Humanitarian Visas involving a proposer in Australia and an applicant in another country.  The two streams are a direct referral of UNHCR to Australian immigration authorities or, in the alternative, a family member in Australia proposing the individual.  Regardless of who completed the form it had to be signed by the actual visa applicant.  That signature was normally obtained by couriering the documentation from Australia to the country involved. In this case, that involved transfer to the Pretoria office and then to Guinea.  Applicants were given the opportunity to amend details during an interview in the country of origin. 

26. Mr Bell acknowledged that the 842 questionnaire had been signed by Beatrice Toe but the 681 form had not.  This, he said, was unusual and that it should have been signed.  Mr Bell explained that, in his experience, many visa applications had been found to be lodged with different documents when the Department was already aware that these individuals had completely different identities.  He had personal knowledge of interviewing refugees, although not in a refugee camp, and the situation was such that rigid auditing was not possible given the absence of centralised record keeping in many countries.

27. In Beatrice Toe’s case, questions would not have been asked regarding her date of birth as the information relating to her children and their ages was consistent with the documented date of birth of xx September 1971.  Where it was difficult to obtain civil documentation the information provided by agencies such as UNHCR was given weight.  In Beatrice Toe’s case the UNHCR certificate states her year of birth as 1971.

    Mr Richard Featherstone - Forensic Document Examiner, Department of Immigration and Border Protection

28. Mr Featherstone has been a Forensic Document Examiner since 1996.  He has conducted many training courses for members of the Refugee Review Tribunal and Migration Review Tribunal, Australian Customs Service, Australian Federal Police and Victoria Police.  He has run document training courses in numerous countries around the world. 

29. On 19 October 2016 Mr Featherstone received Ms Beatrice Toe’s Republic of Liberia Certificate of Registration of Birth said to be issued on 11 May 1984 and documenting her date of birth as xx September 1983.  In his report of 15 November 2016 he detailed the observations made and the conclusions he had reached following his forensic examination. These were:

    1there is no paper or print security in the document;

    2the issuing security has not been introduced in the expected manner;

    3the document shows evidence of possible artificial ageing;

    4the document was printed using a desktop method that was not publically released on a wide scale until the following year.

    He concluded that, in his opinion, the document was Counterfeit.  Various images were provided in support of his conclusions, in particular these related to attempts at artificial aging, overprinting of the document using a colour Inkjet printer and a simulated wet stamp printed also by a colour Inkjet printer.  There were areas of over written text and Ms Toe’s biographical data had been hand written.  Infrared Spot Fluorescence indicated possible obliteration of previous text and the need to re-add the dotted lines.

30. In his evidence before the Tribunal Mr Featherstone expanded on his interpretation of the document and provided the information that the method of completing this certificate did not fit the method of any Liberian county to his knowledge.  When challenged as to the degree of confidence he had with respect to the document being counterfeit, he responded: 100 per cent. 

    Ms Beatrice Toe

31. Ms Toe was recalled to give further evidence in view of Mr Featherstone’s expert evidence as to the legitimacy of her birth certificate.  Whilst she did not challenge Mr Featherstone’s findings, she disagreed with his interpretation.  She thought it was possible they had Inkjet printers in Liberia in 1984. 

    Ms Toe was again challenged as to various dates. She maintained her earlier evidence.

    RELEVANT LEGISLATION

32. Sections 48 and 49 of the FOI Act provide as follows:

    48  Application for amendment or annotation of personal records

    Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:

    (a)that is incomplete, incorrect, out of date or misleading; and

    (b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

    the person may apply to the agency or Minister for:

    (c)an amendment; or

    (d)an annotation;

    of the record of that information kept by the agency or Minister.

    49  Requirements of an application for amendment

    An application for amendment must:

    (a)be in writing; and

    (b)as far as practicable, specify:

    (i)the document or official document containing the record of personal information that is claimed to require amendment; and

    (ii)the information that is claimed to be incomplete, incorrect, out of date or misleading; and

    (iii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

    (iv)the applicant’s reasons for so claiming; and

    (v)the amendment requested by the applicant; and

    (c)specify an address in Australia to which a notice under this Part may be sent to the applicant; and

    (d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

    and s 50 of the FOI Act addresses the amendment of records stating:

    50  Amendment of records

    (1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

    (a)the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

    (b)the information is incomplete, incorrect, out of date or misleading; and

    (c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

    the agency or Minister may amend the record of information.

1. The Department has the onus of establishing that the decision is justified or that the Tribunal should give a decision adverse to the applicant (FOI Act s 61(1)(b)).

   SUBMISSIONS

2. Ms Latif identified the issues for the Tribunal as being:

   1.Whether the Tribunal is satisfied that the records in relation to Ms Toe’s Humanitarian Visa application and that of her proposer Martha Toe were correct at the time they were submitted?

   2.If the Tribunal is not so satisfied, what amendment is required and what is the foundation for such an amendment?

3. Ms Latif addressed the evidence before the Tribunal in detail and in particular pointed out that the consequences of amending Beatrice Toe’s date of birth so that she would be 12 years younger would be an impact on her entitlement to an aged pension and her access to any superannuation payments by a period of 12 years.  This could mean at the age of 80 she would still be required to keep working.  Ms Latif submitted that Ms Beatrice Toe’s arguments regarding age discrimination in employment was, on the evidence, a one‑off occurrence. Given the job concerned was with a Local Government entity, Moorabbin Council, who are well aware of the anti-discrimination legislation, it was most unlikely that any age factor would have been mentioned in an interview. 

4. Ms Beatrice Toe, while giving evidence that this so called age discriminatory decision had resulted in a stress leading to poor concentration, had not produced any supporting evidence from a general practitioner or a specialist.

5. Beatrice Toe had provided all the information for her Refugee Certificate issued by the UNCHR on 23 November 2005.  This stated her birth year to be 1971, although the date of birth was 1 January 1971 in accordance with UNHCR practice.  In her application for an Offshore Humanitarian Visa for migration to Australia (Form 842) it was clear, on the documentary evidence before the Tribunal signed by Beatrice Toe on 2 June 2006, that she had been given the opportunity to make corrections to what was a typed document when she had been interviewed by an immigration officer.  Beatrice Toe had agreed that the corrections to this document which were entered in black handwriting correcting previously typed answers had been discussed with her at the time.  While both Beatrice and Martha had given evidence and Serena had provided the statement but did not appear to give evidence, their evidence had been inconsistent and conflicting.  This was particularly so in relation to dates, as Martha had corrected the date of 2006 to 2005 when challenged as to when she was aware that Beatrice was still alive. 

6. In the event that Beatrice Toe’s birth in the year 1983 was correct, Ms Latif contended that this would mean she had entered into a de-facto relationship at the age of six or seven, had her first child Martu, listed on the visa application as missing, in 1991, the second child in 1993 and Majay who accompanied her to Australia as being born in June 1995.  Ms Latif contended that having had three children between the ages of seven and twelve was a biological impossibility.  In her evidence Beatrice Toe had clearly stated that whilst declared as her biological children, none of these three were in fact so.

7. Ms Latif cited the decision in Re John Grass and Secretary, Department of Immigration and Border Protection [2014] AAT 751, that involved an application for amendment of a date of birth.  In Re Grass, Senior Member A K Britton at paragraph 65 said:

   65.The Act does not prescribe the factors to be taken into account in deciding whether the power to amend a record of personal information, should be exercised. ... While the power is not restricted to so-called active or current records, nonetheless the nature of the document is relevant to the exercise of the discretion. In my opinion a cautious approach should generally be adopted in the exercise of the power to amend when the relevant documents are plainly historical records. Self-evidently the amendment of such records may result in the record itself becoming nonsensical or misleading.

   In Re Grass the amendment in relation to date of birth was still under review by the Department of Immigration and Border Protection.

8. Mr Robi also addressed the evidence before the Tribunal but submitted that it was the duty of the Department to make further enquiries, particularly where relevant questions had not been answered.  He noted that the Department had not pursued further elucidation of the DNA studies in relation to whether or not Majay Konah was the daughter of Beatrice Toe or her niece.  Given that when Martha filled out her application forms for a Humanitarian Visa to migrate to Australia she did not know whether Beatrice was alive or dead, she had no way  of checking the accuracy of the 1971 date she had entered. 

9. In relation to the opinions of Mr Bell and Mr Featherstone, Mr Robi contended that the birth certificate and the Liberian certificate had not been proven beyond reasonable doubt as being counterfeit.  He pointed out that UNHCR Refugee Certificate stated Beatrice’s date of birth as being 1 January 1971, which on all the evidence before the Tribunal was incorrect, the date and month being xx September.  Only year of birth was in contention, in relation to the application for the Offshore Humanitarian Visa by Beatrice Toe and the supporting documentation from her proposer Martha Toe.  Mr Robi maintained that the birth certificate provided to the Department and to the Tribunal was genuine and not counterfeit. 

10. Mr Robi acknowledged that the Department and the Tribunal standing in the shoes of the decision-maker should take a cautious approach regarding the applicant’s date of birth but submitted that the most reliable or likely person to know the applicant’s date of birth was the applicant herself. 

11. In response to Mr Robi’s submissions Ms Latif submitted there was no burden of proof applying to the respondent with regard to a change of record and certainly not one of being beyond reasonable doubt.  It was the respondent, the Department who had requested the forensic testing of the birth certificate not the applicant. 

    TRIBUNAL’S DELIBERATIONS

12. The evidence presented to the Tribunal is, in many respects, conflicting and has been subject to change over the years.  With respect to much of the applicant’s evidence no corroborative data has been presented.  If reliance is placed on the official verifiable documentation of UNHCR and the Department in relation to the applicant and her sponsor’s completion of immigration Forms 842 and 681, her date of birth is xx September 1971 and not, as she claims in her application for amendment of the official records, xx September 1983.

13. Beatrice Toe has repeatedly declared since she lodged her application for an Offshore Humanitarian Visa to migrate to Australia in 2007 that she was born in 1971 and that she entered into a traditional (de-facto) marriage with Melvin Konah in 1990 and they had five biological children with dates of birth between 1991 and 2003. Majay Konah, born xx xxxx 1995, accompanied Beatrice Toe to Australia, arriving on 31 May 2007. 

14. In her application form, Beatrice Toe, stated she had a daughter, Martu, born on 25 January 1991 and a son, Joe, born on 15 May 1993, both of whom had been missing since November 2002 as was her husband Melvin Konah.

15. The dates provided by Beatrice Toe were not challenged by the Department or any officers involved in her application and its approval, given that all these documents stated she was born xx September 1971 and thus, from a purely biological point of view, the children’s birth dates were not contentious.

16. Beatrice Toe has declared that the incorrect date of birth was documented by her sister Martha in the latter’s application for an Offshore Humanitarian Visa which she lodged on 9 September 2003, in relation to her own migration to Australia.  This had been repeated in her sponsorship form relating to Beatrice’s application for an Offshore Humanitarian Visa lodged in 2006.  Martha in turn has attributed the date of birth error to Aaron Toweh, the authorised person who completed the forms for Martha Toe in her application.  Aaron did however manage to enter the correct dates of birth of Martha’s accompanying persons, eight in number, and those of her parent’s and five siblings other than Beatrice.

17. Beatrice Toe gave evidence that she was aware of the error relating to her date of birth at the time of her interview with Immigration authorities on 10 July 2006 and again on 19 July 2006, she having submitted her application on 9 May 2006.  While she did correct various errors in the application she did not change her date of birth as she believed that doing so could impact adversely on the approval of her application and her sister Martha had advised that she could correct this and also add her middle name of Susan after she arrived in Australia. 

18. Other major inconsistencies had been noted including Beatrice Toe’s declaration that her step-mother and five step-siblings had been killed in front of my eyes by rebels in 1990 but then in 2010 she had tried to propose these six persons for Humanitarian Refugee Visa acceptance by Australia.  More recently, in 2011 Beatrice Toe discovered and advised the authorities that her de-facto husband Melvin Konah is alive and living in the United States of America, he having been accepted there as a Humanitarian Refugee.  The Department and also the Information Commissioner have queried Beatrice’s claim that she resided at the Laine Refugee Camp between November 2002 and May 2007, there being evidence that she was located some 600 kilometres from the Laine camp. 

19. In her application for amendment received on 31 August 2011, Ms Beatrice Toe had noted the incorrect entries as relating to her date of birth, her marital status, her name to the extent that her middle name Susan was not recorded and the number of her biological children. 

20. Ms Toe claims that the recording of her year of birth as 1971 is having a negative impact on me in the workforce.  In her evidence before the Tribunal the only episode of possible age discrimination was that when she had applied for a job with the Murrumbeena City Council.  This Council is a Local Government entity subject to and aware of the age antidiscrimination legislation.  No corroborating evidence as to this event has been provided nor is there any medical evidence to support Ms Toe’s claim that as a result of her incorrect year of birth being registered she is suffering from anxiety, stress and poor concentration.

21. The documentary evidence provided by Ms Beatrice Toe, consists of her UNHCR certification which was issued on 23 November 2005, Ms Beatrice Toe having provided all the information necessary.  This has not been disputed as to its authenticity by either party and it carries her date of birth as 1 January 1971.  The Liberian Identification Card has been ascribed no weight by the Departmental report of Mr Daniel Bell, Senior Migration Officer, Victoria.  According to Mr Bell the record of vital events such as Births, Deaths and Marriages was destroyed during the civil war in Liberia, this war having ended in 2003.  In February 2014, the Department of Immigration and Border Protection advised that the Liberian Ministry of Health and Social Welfare is under pressure to issue documentation that establishes the identity of thousands of returning refugees from Guinea.  The Principal Registrar confirmed the destruction of documents and stated that their current practice in the issuing of certificates was based on the attestation made by the applicant.  Thus the Tribunal cannot ascribe any weight to this documentation. 

22. Initially Ms Beatrice Toe had provided a photocopy of her birth certificate and then produced what was said to be the original as having been in her mother’s keeping for many years and was provided to the Department on 19 October 2016 and in turn to Mr Richard Featherstone a forensic document examiner.  The photocopy of this certificate had been presented to the Bureau of Vital and Health Statistics in the Ministry of Health and Social Welfare of the Liberian Government and on 4 April 2014, the Principal Registrar, Solo S Barton, determined that it had been faked.  When challenged by Mr Robi as to whether that was merely his opinion, Mr Featherstone said no he was 100 per cent confident that the birth certificate was counterfeit. 

23. Ms Beatrice Toe had presented the statement from Reverend Inola dated 15 April 2006 who identified himself as a founder of the Glorious Church of Christ Mission in Guinea, Conakry.  He testified that Beatrice Susan Toe was a member of his ministry, had been born on xx September 1983 and had been known to him since 2006, when she left for Austria [sic].  The letter was dated 15 April 2006 which of course would mean he had known her for, at the most, three and a half months.  It would appear that the Reverend Inola relied solely on the information provided to him by Ms Beatrice Toe.

24. Ms Serena Toe, sister of Beatrice Toe, had provided a statement and had been expected to give evidence but did not attend.  Her statement was not tendered into evidence.

25. Given the content of both Beatrice Toe’s application for an Offshore Humanitarian Visa and that of her proposer, her sister Martha, both of which declared her year of birth to be 1971 and both of which provided details as to her marital status and that she had five biological children and the lack of any corroborating evidence provided thereafter to support her claim that her date of birth was xx September 1983, the Tribunal does not accept that even if she did enter a traditional marriage at the age of 7 it is extremely unlikely that she gave birth to a child at the age of eight, a second child at the age of 10 and the third child now identified as her niece at the age of 12.  While the birth of a child at the age of 12 is biologically possible the two earlier births are not except in the rare instances of endocrine or genetic disorders. 

26. While Beatrice Toe has since rescinded her original declaration relating to her marital status and the names of her biological children she signed the application for an Offshore Humanitarian Visa (Form 842) and in so doing declared the information as being complete, correct and up to date and acknowledged that her visa could be cancelled and that she could be removed from Australia in the event that she had given false or misleading information. 

27. Based on the evidence before it, the Tribunal is not satisfied that the birth date and the name of Beatrice Toe as it appears in the records of the Department of Immigration and Border Protection is incorrect and as a result the request to amend the personal records under s 48 and s 49 of the FOI Act is refused. To find to the contrary and allow the amendment of Ms Toe’s records would, as stated by Senior Member Britton in Re Grass, result in the record itself becoming misleading if not nonsensical.

28. The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

..........................[sgd]..............................................

Associate

Dated: 14 March 2017

Date of hearing:	14 October 2016 & 1 December 2016
Advocate for the Applicant:	Sabinus Robi
Solicitors for the Applicant:	Kaprivi Legal
Counsel for the Respondent:	Ms Emily Latif
Advocate for the Respondent:	Jolanta Kowalewska
Solicitors for the Respondent:	Australian Government Solicitor

APPENDIX – LIST OF EXHIBITS

R1T-Documents

R2Supplementary T-Documents

R3 Report of Mr Daniel Bell, Senior Migration Officer - Pretoria, 3 December 2015

R4 Curriculum vitae of Mr Richard Featherstone, Forensic Document Examiner, Department of Immigration and Border Protection

R5Mr Richard Featherstone report entitled "Document Examination Case Report" dated 15 November 2016