VAN DAI DANG and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
[2009] AATA 578
•10 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 578
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5403
GENERAL ADMINISTRATIVE DIVISION ) Re VAN DAI DANG Applicant
And
DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date10 July 2009
PlaceCanberra
Decision The Tribunal decides that:
1. in accordance with the agreement of the parties, the records of the Department of Immigration and Citizenship be amended to indicate that the Applicant’s date of birth is 3 January 1949;
2. the Applicant’s application for a recommendation as to costs is refused.
...............[sgd]..........................
J.W. Constance, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – costs – applicant seeking recommendation to Attorney-General that his costs be paid by Commonwealth – reasonableness of the decision reviewed by the Tribunal – application for recommendation as to costs refused
Freedom of Information Act 1982 – Section 66
Re Robert Paterson (No 2) and Department of Arts, Heritage and Environment [1985] AATA 205
“WAJ” v Commonwealth Ombudsman [1999] AATA 13
REASONS FOR DECISION
10 July 2009 J. W. Constance, Senior Member
EDITED TRANSCRIPT OF ORAL REASONS FOR DECISION
BACKGROUND
1. This is an application by Mr Dang seeking a recommendation to the Attorney‑General that the costs of his application before the Tribunal be paid by the Commonwealth. The application is made pursuant to section 66 of the Freedom of Information Act 1982.
2. On 17 November 2008 Mr Dang lodged an application for review of a decision to refuse his request that his date of birth on his certificate of citizenship be amended from 5 April 1952 to 3 January 1949. Section 48 of the Act gives the Department power to amend personal records.
FACTS
3. The matter was set for hearing on 11 May 2009. A notice to the parties listing the matter for hearing on that day was issued on 25 February 2009. On 2 April 2009 Mr Dang filed a certified original birth certificate issued by the Lao People’s Democratic Republic showing his date of birth as 3 January 1949. Also on 2 April 2009 Mr Dang filed statements by two of his siblings confirming that within their knowledge he was born on 3 January 1949. On 9 April 2009 Mr Dang, through his solicitors, filed a statutory declaration by his first cousin who is living in Australia, which also confirmed his date of birth to be 3 January 1949.
4. On 24 April 2009 a further statement by of Mr Dang was filed. In that statement Mr Dang provided information in relation to the certificate of birth to which I have referred. Mr Dang said that in February of 2009 he visited the Embassy of the Lao People’s Democratic Republic in Canberra and inquired as to whether he could obtain a certificate of birth. He was informed by a consular official with whom he spoke that it would be possible to obtain a birth certificate if the application was lodged directly in Laos at the office of the Province where Mr Dang was born. Mr Dang was also advised by the consular official that it would be necessary to provide names of three witnesses who could attest to his date of birth. In fact the names of each of the witnesses that were identified appeared on the certificate of birth that was subsequently issued.
5. Mr Dang said in his statement that the process to obtain the certificate was initiated by him through his older brother who was living in Laos. On behalf of Mr Dang his brother lodged an application at the office of the Province in which Mr Dang was born. The cost was approximately $80 to $85. Each of the witnesses named in the certificate of birth signed witness statements in the presence of the Chief of the village. The first witness is the head of the local Vietnamese community in the village and an immediate neighbour of Mr Dang’s mother, as is the second witness. All three witnesses are known to the Chief of the village, whose stamp and signature appears on the certificate. Mr Dang is also personally known to the Chief of the village, who has a long and personal association with Mr Dang’s family still living in Laos.
6. The same gentleman witnessed Mr Dang’s mother’s original statement and his sister’s more recent statement attesting to Mr Dang’s correct date of birth. As I have said this statement was filed on 24 April 2009 and the birth certificate was filed on 2 April 2009.
ISSUE
7. On 1 May 2009 both parties to these proceedings confirmed that an agreement had been reached that Mr Dang’s certificate of citizenship would be altered to reflect his correct date of birth as being 3 January 1949. This is in fact what Mr Dang had sought and the only issue then remaining was whether the Tribunal should recommend to the Attorney-General that the Commonwealth pay Mr Dang’s costs incurred by him in making the application.
LEGISLATION
8. Section 66 of the Act provides:
(1) Where:
(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney‑General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2)Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d) the reasonableness of the decision reviewed by the Tribunal.
(3)The Attorney‑General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.
MR DANG’S ARGUMENTS
9. Mr Dang raised a number of arguments. The first argument was that it is reasonable that the decision-maker should have made a decision in Mr Dang’s favour amending the certificate of citizenship as requested.
10. Counsel for the Applicant made it clear that this request for a recommendation to the Attorney-General was based on the provisions of s 66(2)(d) which provides that the Tribunal shall have regard to the reasonableness of the decision being reviewed. Counsel referred me to Re Robert Paterson (No 2) and Department of Arts, Heritage and Environment [1985] AATA 205. In that decision Deputy President Hall held that in respect of the criterion in s 66(2)(d) the relevant decision to be considered by the Tribunal is a decision that the agency made on internal review to refuse access, not the decision of the agency conceding access made during the course of proceedings. The decision under review in this matter is the decision refusing to amend the certificate, not the later decision agreeing to Mr Dang’s request. At paragraph 55 of Paterson (No 2) Deputy President Hall said:
In my view, it is not necessary in order to determine the "reasonableness" of the agency's decision to decide whether the Tribunal would itself have upheld or rejected the claims of exemption (cf. Cuneo at 1365). A decision refusing access may, in my view, be seen as "reasonable" if there was, on the evidence and material before the agency, a sound basis in law for claiming the exemption.
I note that the above case dealt with the question of exempt documents, but the principles are equally applicable here.
11. The next argument that was raised on behalf of Mr Dang was that the Department had before it at the time it made the decision under review statutory declarations by Mr Dang, by his mother, and by two of his brothers, all of whom attested to the correct date of his birth. It was put to me that these declarations had not been challenged and that in fact, to quote Counsel, it was “outrageous” to challenge the veracity of Mr Dang’s mother and his siblings. Further argument was put that there was substantial difficulty in obtaining documents from Laos. It was also argued the Australian Government itself did not seek the birth certificate from Laos.
12. Counsel argued that when Mr Dang came to Australia he travelled via a refugee camp without any documentation. It was also put that nothing in section 48 of the Act requires independent evidence in addition to evidence such as Mr Dang had put before the decision-maker when the reviewable decision was made. Finally, it was argued that it was unreasonable for the Department not to have advised Mr Dang of the documents required.
13. Turning now to consider these arguments. In my view the general principle to be followed is that set out in the decision of Paterson (No 2) to which I have already referred. At paragraph 23 of that decision Deputy President Hall said:
The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success. Parliament clearly intended that the Tribunal should weigh the circumstances of each case, in the light of the specified and any other relevant considerations, in order to decide whether or not a recommendation should be made.
Counsel for Mr Dang argued that the decision of Paterson should be distinguished as it dealt with exempt documents but, as I have mentioned above, in my view the principles set out in relation to the making of a recommendation under section 66 are equally applicable to this matter.
14. In relation to the particular arguments raised on behalf of Mr Dang, it is true that the decision‑maker had before him the statutory declarations of Mr Dang’s mother and two brothers. However, I do not accept the argument that it was in any way outrageous or inappropriate that the decision‑maker not accept and decide on the basis of that evidence alone. It is not uncommon to require independent corroboration of a claim such as that made by Mr Dang. The fact that the decision-maker was not prepared to act on that evidence does not in any way reflect on the veracity of those who made the statutory declarations. In my view it cannot be said that the decision was unreasonable on these grounds.
15. So far as the difficulties in obtaining documents from Laos, it appears ultimately that when the request was made for the certificate it was obtained without undue difficulty. Regarding the claim that the Australian Government did seek documents from Laos, I am not satisfied that it would have been possible for the Australian Government to obtain an individual’s birth certificate and, in any event, I see no reason why it could be said that the decision was unreasonable because this step had not been taken.
16. I certainly accept that when Mr Dang came to Australia via a refugee camp, he would not have had any documentation with him. However, that was many years ago and in my view it is not an explanation as to why he did not obtain a certified copy of his birth certificate and lodge it with the Department at the time of his request, or at least shortly thereafter. It is true that nothing in section 48 requires independent evidence, but on the other hand there is nothing in the Act which sets out in any particular case what evidence is required or what evidence would be sufficient. This was a matter for the judgment of the decision-maker. Nothing in the wording of the Act suggests to me that the conclusion that was reached by the decision-maker was other than reasonable.
17. Finally, I refer to the argument that it was unreasonable for the decision-maker not to advise Mr Dang of the documents required. In my view, it should have been apparent to Mr Dang and to his legal advisers that the obvious document which should be produced, if possible, was a certified copy of a birth certificate issued by the government of the country in which he was born. As mentioned above, this ultimately proved to be a document which was obtained, it seems, without difficulty. Counsel for Mr Dang also referred me to a decision of “WAJ” v Commonwealth Ombudsman [1999] AATA 13. In that case Senior Member Hotop, now Deputy President Hotop, said at paragraph 35:
The reasonableness, or otherwise, of the reviewable decision is, for the purposes of s.66(2)(d) of the FOI Act, to be judged objectively - that is, according to the standards of a reasonable person. The question is not whether the reviewable decision was right or wrong, but rather whether or not there was a reasonable basis for making it.
18. It is also important to note that that decision confirms that the time to consider the reasonableness of the decision was the time the decision was made and that is certainly a principle which, in my view, is applicable in this case. In summary, it seems to me that it should have been obvious to all concerned that a certified copy of a birth certificate would have been a crucial document to put before a decision-maker in an application such as that being made by Mr Dang. This was a document which was ultimately obtained after these proceedings were commenced and, in addition to the other evidence provided by Mr Dang, enabled the matter in issue to be resolved.
DECISION
19. In all of these circumstances, I take into account the reasonableness of the decision being reviewed and in my opinion it was a reasonable decision at the time it was made and based on the material before the decision-maker. In those circumstances the application for a recommendation to the Attorney-General pursuant to section 66 is refused.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................[sgd]...........................................................
T. Aviram, AssociateDate of Hearing 11 May 2009
Date of Decision 10 July 2009
Date of Written Reasons 4 August 2009
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Mr A. Finlay, Pamela Coward Higgins
Counsel for the Respondent Mr A. Chand, Clayton Utz
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